Study On Identification Of Escape-commission And Legal Consequences

In the booming real estate intermediary services, the phenomenon of escapecommission is more and more frequent. Lack of exact legal norms currently in ourcountry, local courts around the attitudes of reviewing escape commission disputesare not consistent, therefore have yet to formulate the unified identification criteria.Until the guide case issued by Supreme Court in2011, the identification criteria onlyslightly shaped, but there are still different views.At present, several academic views on escape commission are too strict ornarrow, even existing logic defects. According to German legislation and the laweconomics’ viewpoint, identification criteria of escape commission should be judgedfrom the following four aspects:(1) the starting point namely the establishment ofbroker contract;(2) the basic conditions namely brokers’ performance;(3) theimportant condition namely escape commission；(4) the core elements namely thecausal relationship between brokers’ performance and the final deal.The validity of anti-escape commission clause is related to the legalconsequences of the behavior of escape commission. The anti-escape commissionclause should not be simply judged valid or invalid, rather, should be identified basedon the specific circumstances. Provided that brokers have fulfilled their obligationsand a cause-and-effect relationship exists between the brokers’ intermediary behaviorsand the clients’ contracts signed, they can enjoy reward claim right. In this situation,only there is no fault among brokers, whether the clause is invalid or revocable, theystill enjoy reward claim right. Provided that anti-escape commission clause is validand the clients have the behavior of escape commission, brokers can enjoy petitionright on breaking contract regardless of the clients’ subjective attitude.