Analysis On Legal Problems Of Tiaodan And Breach Of Contract In House Purchase And Sale

In recent years,with the rapid development of China’s real estate economy,the real estate intermediary industry is also booming and showing a new development model.The rapid development of the intermediary industry will also be accompanied by the emergence of new legal disputes.Due to China’s lax supervision of the housing intermediary industry,imperfect relevant systems and increasingly fierce competition within the industry,the contradiction between the housing intermediary company and the client has increased.In recent years,the main dispute is Tiaodan,which not only leads to the imbalance of interests between the intermediary and the client,but also affects the development of the housing intermediary industry to a certain extent.Although the guiding case No.1 issued by the Supreme People’s court expressed its position on Tiandan,a series of problems caused by the single jump behavior still need to be solved urgently.Starting from the cases in judicial practice,through the study of a large number of cases,this paper analyzes three main legal disputes in practice,and discusses them around three focuses.The structure of the article is divided into four parts: the first chapter is about the investigation of judicial judgment.By quoting typical cases and combing relevant cases,it summarizes that the three main controversial focuses in judicial practice are the determination of the effectiveness of the anti Tiaodan,the constituent standard of Tiaodan and the assumption of responsibility after the establishment of Tiaodan;The second chapter is the effectiveness of the clause of prohibition of Tiaodan.This part corresponds to the first focus of controversy.By combining the specific circumstances of the case,it shows that the determination of the effectiveness of the clause in judicial practice mainly considers whether it belongs to the standard clause and the elements of the effectiveness of the standard clause,and the academic circles have different views on the determination of the effectiveness of the clause,forming theories such as the theory of validity,the theory of invalidity and the theory of attached conditions for effectiveness,However,combined with practice,the compromise theory is more conducive to the determination of effectiveness in trial;The third chapter is the identification standard of Tiaodan breach of contract,which corresponds to the second focus of dispute.Combined with judicial practice,it expounds that the composition of Tiaodan breach of contract needs to meet four constituent elements,that is,the intermediary contract is legal and effective,the client uses information to trade privately or entrust separately,has causality,and the client has malicious intention to evade payment;The fourth chapter is the assumption of responsibility,which corresponds to the third focus of dispute.After the client constitutes a Tiaodan breach of contract,the intermediary can seek relief according to different claim basis,that is,the claim for compensation for breach of contract or the claim for intermediary remuneration,and further explains that only one of the two claims can be exercised when the two claims coincide.