拍賣中的合同關係和代理效果

Contractual Relationship and Legal Consequences of Agency in Private Auctions

在任意拍賣中，出賣人身份的確定須以拍賣中三方當事人之間的法律關係得到澄清為前提。委托人與拍賣人之間成立的是委托合同，而非行紀合同。拍賣人在以委托人的名義出賣時，發生直接代理效果；在名義不同或者以自己的名義出賣時，根據代理法上的”知悉”標准，發生直接代理或者間接代理效果。通過拍賣建立的買賣合同的當事人因此有不同答案。

In private auctions, only if the threefold legal relationship involving consignor, auctioneer and buyer had been clarified, can the seller's identity be determined. The auctioneer acts as an agent, other than a Kommissionar, for the consignor. In the case the auctioneer acts in the name of the consignor, it is the con-signor and the buyer that should be bound by the sales contract; in the case the name is unclear or the auctioneer acts in his or her own name, whether the auctioneer can take the seller's liability should be determined in light of the buyer's actual acknowledgment of the consignor's identity. Furthermore, the auctioneer acts both as the consignor's agent and the bidders' broker. Art.40 (1) of Chinese Auction Law (CAL) provides foundation for the buyer to claim damages due to the seller's failure to perform the sales contract when the auctioneer does not act in the consignor's name, while the first part of CAL Art.61 (1) provides foundation for the buyer to claim damages arising from the broker's (auctioneer's) failure to properly disclose defects.