Study On The Intermediary's Disclosure Obligation In Housing Transactions

With the rapid development of the real estate market,the transaction of houses is more frequent.The housing transactions can be divided into two categories,namely,the newly-built housing transactions and the second-hand housing transactions.This paper focuses itself on the primary transactions of pre-owned house,in which the brokers are involved.In the House Sale and Purchase Intermediary Service Contract,the intermediary's disclosure obligation is the basic one.As professional profit-making companies,the property agencies have more advantages and convenient conditions than the consumer in obtaining the house-related information.They also possess more experience in terms of substantive conditions and transaction processes involved in the transaction.It is his belief in the intermediary's expertise that makes the client willing to seal an intermediary contract.It can be said that the intermediary's earning of brokerage is based on the truthful and comprehensive implementation of the disclosure obligation.However,it is precisely its advantage in economic strength and information collection,and its profit-making character that make the real estate brokerage company conceal the true information and inform the false situation in the course of the real estate transaction.Therefore,dispute caused by the breach of disclosure obligation harming the client's interests is also increasing.However,due to the fact that the relevant laws and regulations in China are very abstract in the disclosure obligation of intermediaries,the existing legal system can neither strictly regulate the act of intermediaries to make their disclosure obligation fulfilled before the disputes occur,nor,afterwards,offer many specific referee rules for reference to regulate the embarrassing situation of chaos in the intermediation market.This paper whereas focuses on the judicial cases of disputes over housing transactions intermediary contracts,coupled with the current relevant legal norms in China,exerting the case-analyzing and norm-analyzing methods to study these five aspects:(1)the subject standards set up by housing transactions intermediaries,(2)the object standards of faithful statement,(3)the scope of disclosure,(4)the fulfillment of the obligation of investigation and verification,(5)and the responsibility for breach of disclosure obligation,thereby revealing the real connotation of Article 425 in the China Contract Law,and building a better system framework of disclosure obligation.In addition to the introduction and conclusion,this paper is divided as follows:Part I: Introduction of typical cases.By introducing the typical cases,court judgments and controversial focus,this paper demonstrates that if the intermediaries of house transaction fail to investigate and verify the relevant important information and inform the clients truthfully,they shall undertake the corresponding legal responsibility.Part II: the analysis of the status quo of the intermediary's duty of disclosure.Through statistical analysis of the existing effective legal norms and judicial cases concerning the duty of truthful disclosure of intermediaries,the paper analyses the specific problems in the disclosure duty of intermediaries at both the legislative level and the judicial practice level.Part III: Necessity analysis of the intermediary's duty of faithful statement.There is information asymmetry in the contract of house transaction intermediary service,in which the intermediary is in the dominant position.Therefore,in order to protect the interests of the principal and balance the power and obligation between the intermediary and the client,the intermediary should fulfill the duty of disclosure under the principle of good faith and the principle of fairness and justice.Part IV: The institutional framework of the intermediary's disclosure duty.This paper proposes an improved system framework from the following five aspects: the subject standard established by the intermediary,the object standard of the intermediary's disclosure obligation,the scope of the information given by the intermediary,the fulfillment of the intermediary's duty of investigation and verification,and the responsibility for breach of disclosure obligation.