From affiliated leasing case analysis of relationship between undisclosed principal and brokeragePlaintiff and defendant accompanied driving company oral agreement, all Santana commissioned to accompany a car company leases, Zhang accompanied driving a 300 yuan/month fee. Accompanied driving after the car rental company be given defendant Wang (Wang append missing Court as co-defendants). Wang was mortgaged to the Shanghai of the vehicle Lee and to Lee borrowed 40,000 yuan. Zhang learned of the incident, reported the case to the public security organs. In order to reduce the loss, recover vehicles, Zhang to Shanghai with the accompanied driving company paid Wang Lee's "borrowing" of 40,000 yuan. Afterwards, Zhang as the accompanied driving companies compensate the plaintiff sued a variety of loss of more than 40,000 yuan.
At trial, the defendant accompanied driving companies argue, accompanied driving principal-agent relationship between the company and the plaintiffs, accompanied driving before the car rental companies have tested the lessee Wang ID card and driving papers authenticity, accompanied driving without fault of the company. And the plaintiff has reported the case to police after the cheat is for cars, through the proper channels to get back the vehicle, the plaintiff to a redeemed Lee vehicles to their personal behavior, Wang is the actual infringer, the plaintiff should be to the King, a claim, should not accompany car company claim.
After the trial, the Court of first instance finds that defendant Wang hire car should be about the return of leased vehicles, it should assume that it must return the vehicle to the owner's liability, the plaintiff caused a loss. Through accompanied driving the plaintiff company all of its non-operating vehicles for hire business, and accompanied driving knowing the situation of the company, and its rental vehicles and eligibility for collecting management fees, car rental is the premise that occurred in the present case, so both sides could eventually cause loss in this case there is a fault, should fault on both sides share the responsibility. If Wang cannot compensate for all losses, the accompanied driving companies bear part liability. Accordingly, the Court of first instance, Wang compensation for loss of the plaintiffs, accompanied driving companies to Wang is unable to perform his obligation to compensate part of the 40% of liability.
Case of second instance and second instance court held that the plaintiff and the accompanying vehicles car company and the trustee of a contractual relationship, accompanied driving company as trustee, plaintiff's principal, Wang mortgage leasing vehicle behavior violated the plaintiff's rights. According to Article No. 421 of contract law "contracts with the trustee and the third, the trustee who directly enjoys the rights and assumes the obligations of the contract. Third person fails to perform an obligation to cause harm to clients, the broker shall be liable for damages, but the trustee except where otherwise agreed with the client ", it accompanied Jia Wang breached companies need to suffer the consequences of liability. Accompanied driving companies with Zhang in Shanghai, failed to stop a paid 40,000 yuan to reduce losses, it does not absolve the accompanied driving company liability. Court of second instance upheld the first instance decision.
Case at issue is accompanied driving companies and what legal relationship exists between the plaintiff company and accompanied driving should bear civil liability.
One idea: accompanied driving principal-agent relationship between the company and the plaintiffs, the plaintiffs will be commissioned to accompany all of its vehicles driving company leased, accompanied driving as an agent of the company, its consequences and risks shall be borne by the plaintiff. Accompanied driving companies to perform the acting duties in the present case, in the car rental process is without fault. Lessee Wang vehicles "mortgage" for Lee's behavior has nothing to do with the accompanied driving companies in Shanghai, and Lee has no right to detain vehicles, the plaintiff "redeemed" caused loss of 40,000 yuan is to abandon its legitimate exercise of the right of the results. Accordingly, the accompanied driving company should not bear the responsibility in this case.
Perspective II: Wang signed a contract with the defendant accompanied driving companies, agreed to rent vehicles to Wang accompanied Jia on behalf of the company to the plaintiff leased and accompanied driving company name lease, no lease contract between plaintiff and Wang. Plaintiff's oral agreement with the accompanied driving companies company commissioned to accompany the vehicle driving rental and management fees to the plaintiff to pay 300 yuan a month to accompany car company, therefore, the plaintiff and accompanying car company is the brokerage contract. People's Republic of China contract law No. 421 of the article: "the trustee and a third person to enter into a contract, the trustee who directly enjoys the rights and assumes the obligations of the contract. Third person fails to perform an obligation to cause harm to clients, the broker shall be liable for damages, but the trustee except where otherwise agreed with the client. " Accompanied driving company knowing that the plaintiff pay "redemption" is not blocked, it cannot be exempted from its liability; in view of the results of the plaintiff in the present case, and has been at fault, to bear the primary responsibility, Wang cannot compensate for the losses of the accused part of the 60% should be proud.
In my opinion, this battle real anonymous proxy (also known as indirect representation) and the trustee of the contracts.
Anonymous proxy corresponds to the direct agent, refers to the agent on your behalf to the person, but the meaning of civil juristic act of the effect is attributable to the client. Indirect representation, because agents are external acts in their own name, in accordance with the tradition of civil law on the request of the agent must be named, such agents in nature do not belong to the real agent. Indirect agents called in the civil law tradition and the trustee, without known as agents. So-called trustee means the trustee on your behalf for clients engaged in trade activities, clients pay contracts. Brokerage relates to two contracts: one is the contract relationship between the trustor and the trustee, such as delegate trustee-purchase of goods or the sale of goods; the second is the trustee sale contract with the third party, such as trustee after commissioned, on your behalf to a third party to buy goods or sell the goods to a third person. Trustee is made up of two contractual relationship, constitutes a complete brokerage until the combination of the two. From the legal point of view, the trustee does not refer to any one of these contracts, because if the Commission considered the trustee contract with clients, this relationship has been adjusted by the Commission contract, the law does not provide for the trustee necessary. If the Commission considered to be trustee business relationship with the third party, this relationship should be subject to adjustment of the contract of sale, there is no separate provision of law necessary to broker. Article No. 414 of the contract law also stipulates: "the contract of Commission is the trustee on behalf of their clients to engage in trading activities, clients pay" contracts.
Anonymous Agency and brokerage contract having the same point: they are based on the trust relationship, the Trustees are for the client's interests, and to contract with a third party on behalf of, generally there are two types of legal relations.
But both also have many differences:
1, intervention and choice of subject. Hidden name agent exercise intervention right of subject is client, contract method No. 403 article first paragraph provides: "trustee people to since has of name and third people made contract Shi, third people not know trustee people and client Zhijian of agent relationship of, trustee people for third people of reasons on client not perform obligations, trustee people should to client disclosure third people, client so can exercise client on third people of right". Choose the right subject is third person, article No. 403 of the contract law provisions of the second paragraph: "the agent by the principal causes to the third party's failure to perform, the trustee should be disclosed to the third party client, third person so you can select the agent or the principal as people claim their rights".
Contract of Commission interventions are the subject of the trustee, the contract law article No. 419: "trustee-sell or buy with a market price of goods, apart from the principal intention to the contrary, man himself can be a buyer or a seller." Problems there is no option in the contract.
2, for the contract cannot be performed as a result of different subjects of rights and obligations. According to Article No. 421 of the contract provides that "the trustee and a third person to enter into a contract, the trustee directly to the contract rights and obligations". Therefore, the trading-trust contract is a contract by the independent trustee to a client and the third party responsibility. And anonymous proxy it is still an agent, agent behavior as a result of the law on the legal consequences of that representative shall be borne by the principal.
3, ownership of the property right circulation reflects the different subjects. Because of the anonymous proxy is a proxy, the agent process does not occur because of the transfer of the ownership of cases transferred to the agent. Contract of Commission when the logistics when you go to the hands of the trustee, transfer and transfer of ownership of an object. When the logistics go to the trustee, trustee at bankruptcy, client and the trustee is the trustee of a contractual relationship is whether anonymous agency contract included in the insolvency estate is of decisive importance, at this time have a significant impact on the interests of the principal and the third party.
4, are different in nature. Anonymous proxy clients to the agent authorized in a single case, and brokerage contracts must be the establishment of the contract relationship between the parties.
5, whether paid differently. Trading-trust contract is a contract and agency contracts are not necessarily paid.
Although the undisclosed principal and brokerage contracts there is an obvious difference between these, but the combination of the above cases, as the plaintiff and the accompanied driving company is the oral contract, therefore, both parties agree the specific rights and obligations is not clear, the Court found that the facts and distinguish dormant agent and brokerage contract caused certain difficulties. But another particularity of the case in a car rental is a Kinaka trade, which is one of the disputed content. In real life, the owners want to use with driving the company's client resources to keep a car and accompanied driving company also paid based on this charge, on behalf of the owner to the accompanied driving company vehicles for rent is a common phenomenon, but any economic objective legal risk, for a variety of reasons on both sides at the beginning of these acts is not aware of the risk, but risk comes too late. Therefore, the specification of these acts, clear legal consequences is of great significance.
Author think, in this case in the a trial judgment in finds plaintiffs and accompany driving company exists what vehicles legal relationship Shi take has avoided of attitude, is both oral agreed of content insufficient to finds both between is agent also is line JI relationship, and due to accused King a of behavior real is crime behavior (at related judicial explained also not introduced), to objective Shang plaintiffs for reduced loss to "foreclosure car" of way solution also is helpless of lift. Therefore, the Court found, from the angle of administrative non-operating vehicles for hire of improper operation, accompanied driving also knows this, but joined the car company has no legal basis to charge management fees, so there were faults on both sides by Decree both sides share the losses.
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