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日常生活中,夫妻相互代理与第三人所为法律行为,乃司空见惯之事;即使没有代理权,由于夫妻之间的特殊关系,一方亦比较容易制造代理另一方的外观,从而令第三人相信其有代理权,与其为法律行为。所谓夫妻家事代理权,是指夫妻在日常生活中相互具有代理权,一方与第三人所为法律行为而产生的法律后果,由双方共同承担连带责任。但是在提倡夫妻平等独立的现代婚姻家庭关系中,夫妻一方与第三人所为的法律行为应当由其个人承担法律责任,夫妻家事代理权规定的理论根据是什么?日常家事的范围是什么?如何平衡夫妻中被代理一方和第三人的利益?对此,笔者拟先通过对日本民法第761条有关家事代理权的规定以及判例的介绍,再与我国最高法院司法解释及法院案例进行比较,深入研究探讨上述问题,进而论证我国是否有必要确立夫妻家事代理权制度。
In daily life, the act of mutual agency between husband and wife and the third party is a common occurrence. Even without the power of attorney, it is easier for one side to create the appearance of the other side of the agency as a result of the special relationship between husband and wife, I believe they have the right to act as a legal act. The so-called husband and wife agency, refers to the couple in their daily lives have the right to act as one, the legal consequences of the legal actions of one party and the third party, both parties jointly assume joint and several liability. However, in advocating equality and independence between husband and wife in the modern marriage and family relations, the legal acts of the couple and the third party should bear the legal responsibility by their own. What is the rationale for the regulation of husband and wife agency power? What is the scope of daily family affairs? How to balance the interests of the spouse and the third party in the spouses? In this regard, I intend to pass the first section on the provisions of Article 761 of the Civil Law of Japan and the case precedent, and then compared with the judicial interpretation and court cases of the Supreme Court of our country , In-depth study to explore the above issues, and then demonstrate whether it is necessary for our country to establish husband and wife agency system.