表見代理的證明責任問題

On the Burden of Proof of Apparent Agency

關於表見代理的證明責任問題，理論和實務上均有一定爭議。從證據調查的角度，善意和無過失存在重大區別，應作為兩個獨立的構成要件，分別適用證明責任;而被代理人不可歸責性，也應作為表見代理的獨立構成要件。基於表見代理的規範目的，代理權外觀、相對人無過失應作為權利成立要件，由相對人證明;相對人非善意、被代理人不可歸責性應作為權利妨礙要件，由被代理人證明。我國表見代理立法沒有對代理權外觀的來源加以限定，而是直接落腳於“相對人有理由相信”這一抽象標準。考慮到這一點，《民法典總則編司法解釋》對表見代理證明責任的調整，有可能進一步降低相對人主張表見代理的難度。

There are certain disputes in theory and practice about the burden of proof of apparent agency in China. From the perspective of evidence investigation, there are significant differences between good faith and non-fault, so that they should be regarded as two independent constituent elements; The non-imputability of the principal should also be regarded as an independent constituent element of apparent agency. Based on the normative purpose of apparent agency in China law, the appearance of agency right and the non-fault of the counterpart should be regarded as the elements of the establishment of the right, which should be proved by the counterpart; The non-good faith of the counterpart and the non-imputability of the principal should be regarded as the elements of impediment of the right, which should be proved by the principal. China’s legislation does not limit the sources of the appearance of the agency right, but directly rests on the abstract standard of“the counterpart has reasons to believe”. In view of this, the adjustment of the burden of proof of apparent agency in the judicial interpretation of the general part of Civil Code may further reduce the difficulty of the counterpart in claiming apparent agency.