浅析我国行纪制度的发展困境及对策

在我国《合同法》引入了类似英美的隐名代理和不公开本人身份的代理的合同委托制度后 ,作为大陆法系特有的行纪制度在发展中面临着一系列困境。本文综合相关问题出现的原因 ,提出我国行纪制度要保持独立性并获得发展 ,必须解决不同法系理念的整合问题、确定行纪与非显名代理的区分标准并且弥补现有立法的不足。随后提出了一系列对策 ,主张目前应理顺代理与行纪的关系 ,积累司法实践经验并加强商事单行法的制定工作。

On the embarrassment and way-out of Chinese commission system

Since both implied agency system which is similar to that in the Anglo-American system of law, and contract commission system which is one kind of agency systems without publicizing the identity of principal, was introduced to Chinese Contract law, commission system which is exclusive in civil legal law system, has run into a series of embarrassments in the course of development. According to the reasons to the correlative issues, the integration of separate ideas of different legal systems should be accomplished, the standards to differentiate between commission and non-express procuration should be set up and the deficiencies of current law system should be made up in order to keep the independence of commission system and develop it. Subsequently a series of tactics are put forward and the author asserts that the relationship between procuration and commission should be crystallized, judicial experience should be accumulated and the establishment of commercial separate regulations should be enhanced.