英國法本人與代理人內部關係之研究

Abstract

大陸法系與英美法系之代理制度背後存在不同的理論基礎、歷史脈絡，致使二者建立起各自的發展軌跡。大陸法系的代理法區別代理權授與及基礎法律關係（即內部契約，多為委任），代理權之授與係本人對代理人單方法律行為、獨立於委任契約，故代理法與委任內部契約各自獨立；而英美法將代理解釋為一種忠實關係，代理之成立並不以內部契約之訂定為必要，只要任何人透過實際授與代理權或表見代理之方式影響本人法律關係之情形，皆屬英美代理法之範疇。 不同於歐陸法系強調代理「外部關係」之討論，英美法系著重的是代理之「內部關係」。反映在保護對象上，歐陸法系代理重視代理人與第三人之保護，然英美法系下傳統上認為本人較需受到保護，故於代理內部關係中，對代理人課予許多義務，除了普通法上課予之履行義務及注意義務外，衡平法上更課予 “Fiduciary Duty” 之義務，以保護本人之權益。 英國長遠之普通法及衡平法歷史發展下，建構相當完善之代理體系及忠實義務內涵，值得我國借鏡。有鑑於此，本論文以「代理內部關係」作為主要論述對象，探討英國法下代理之概念及適用範圍、代理之內外部關係、及本人與代理人間之權利義務關係，並於必要之處補充我國法加以說明比較。

Agency is a legal notion recognized in both civil law and common law systems, both of which are based on their own distinct historical influences and legal theories, a divergence that has developed considerable differences in their approach to the concept of agency. The theory of agency in civil law features the conceptual separation of mandate (mandate, Aufrag), i.e., the contract between the principal and agent, from the abstract authority (représentation, Vollmacht), i.e., the power the agent has in order to enter into contracts on behalf of his principal. Yet the common law has adopted a relatively general and unitary concept of agency – “agency” can be said to represent the body of rules under which one person acts for another. Thus, the common law does not stress the existence of a mandate, the agent’s external power is simply derived from the internal relationship, which is not necessarily contractual, but can be based on an agreement. Under the above explanation, in common law, the basic formation of agency is treated as being that in which one party, the principal, consents that another party, the agent, shall act on his behalf, and the agent consents so to act. This consent is said to confer authority onto the agent, enabling him to change the legal position of another. Since the agent has the special power to bind and entitle his principal, the agent is also subject to the duties imposed by equity on fiduciaries, appropriate to the powers that the agent can exercise on the principal’s behalf. Having been inspired by the common law, this thesis focuses on the “principal-agent relationship” in the English Law, discussing the nature of the agency relationship and the internal and external aspects of agency, mainly investing the rights and duties of principal and agent inter se.