Representation and power of attorney, Representation - Civil law

Representation and Power of Attorney


Civil rights can be exercised, and the obligations corresponding to the rights can be fulfilled by subjects both personally and through representatives (Article 182-189 of the Civil Code). A representation means the commission by one person (representative) within the limits of his powers of transactions and other legal actions on behalf of and in the interests of another person (represented). According to Art. 182 ГК the transaction made by the representative on the basis of its powers, directly creates, changes and stops civil rights and duties represented. It should be borne in mind that with the help of representation, not only property, but also some personal non-property rights may be exercised. Thus, the author of the invention can, through a representative, register and apply for a patent. However, it is not allowed to conduct transactions through the representative, which by their nature can be committed only in person, as well as other transactions in cases provided for by law (Clause 4, Article 182 of the Civil Code). For example, only one can personally make a will, issue a power of attorney, conclude a contract for lifelong maintenance, etc.

Representation must be distinguished from mediation and other types of assistance in preparing transactions and implementing other legally significant formalities and measures. From other persons, the representative primarily differs on the basis of an expression of will in the transaction. For example, a handler who signs a will at the request of a testator who, because of a physical defect, illness or for any other reason, can not sign it with his own hand, does not express his own will and does not transfer the will of such a citizen, but only confirms the fact that the citizen expressed his will to deal. The representative, though acts on behalf of the person being represented, but always makes his own will when making deals and other legal actions.

They are not representatives by virtue of Section 2, Art. 182 of the Civil Code are persons acting, albeit in the interests of others, but on their own behalf, persons who only convey the will of the other person expressed in a proper form, as well as persons authorized to enter into negotiations regarding possible future transactions. The legal status of these persons determines, in particular, Art. 990-1004 Civil Code (on the commission agreement), art. 20 of the Bankruptcy Law, art. 42 and 44 of the Securities Market Act, Art. 55 of the Law on Investment Funds. So, the broker (broker), like the representative, makes active legal actions having strong-willed character. However, these actions only contribute to the conclusion of an agreement between the parties, but the parties themselves do not legally bind. The mediator can find partners, negotiate a deal with each of them, but the will of the transaction is expressed by its future participants. The activity of the representative is not limited only to such technical assistance, but is expressed in the establishment of legal relations between the represented and the third party. The representative's activities are close to the activities of the commission agent, who not only provides technical assistance to his clients, but also concludes civil-law transactions in their interests. However, unlike a representative, a commission agent, for example a commission shop, commits transactions with third parties on his own behalf and himself acquires rights and obligations on them, which he subsequently transfers to his clients.

Types of representation. In civil science, there are three main types of representation: depending on the grounds for the appearance of the representative's authority, the legislator distinguishes between representation based on power of attorney , law or act of a state body or local government. According to paragraph 1 of Art. 182 GK authority of the representative can also be seen from the situation in which he acts (seller in retail, cashier, etc.). Comparative legal characteristics of the main types of representation are as follows (Table 3).

Table 3

◘Options of representation

Representation based on an administrative act

Representation based on law (legal)

Representation based on contract (voluntary)

Arises from an administrative order. For example, the CEO of a legal entity will issue an order appointing an employee to the position of legal adviser

It arises from the direct order of the law, regardless of the will of the person being represented. For example, legal parents of young children are their parents

Is a voluntary representation. It arises by the will of the represented, which determines not only the figure of the representative, but also his powers. At the same time, the consent of the representative is required for the performance of legal actions on behalf of the represented person

The credentials of the representative are determined by the administrative act issued, or follow from the job description of the employee, or appear from the situation in which the representative acts (seller, cashier, order receiver, etc.)

Authorities are authorized by law

Between the representative and the representative is concluded a contract that determines their internal relationships (usually a contract of assignment)

Commercial representation . This is a special kind of representation that is drawn up by a written contract of participants. A commercial representative is a person who constantly and independently represents on behalf of entrepreneurs when concluding contracts in the field of entrepreneurial activity (clause 1, article 184 of the Civil Code ). Commercial representatives can be, in particular, brokers in the securities market, patent attorneys and insurance agents. In comparison with the usual non-commercial representation, this type of representation has some peculiarities. For example, a commercial representative is allowed to be simultaneously representative of different parties in the transaction. This is allowed when both parties agree with such representation or when it is expressly provided by law. At the same time, if the commercial representative acts in organized tenders, it is assumed, since it is not proved otherwise, that the representative agrees to the simultaneous representation by such representative of the other party or other parties. Other features of commercial representation in certain areas of business are established by law and other legal acts.

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