Research On The Legal Problems Of "Bypassing The Broker" In The Intermediary Contract Of Housing Transactions

As China’s housing demand tends to saturation and the urbanization rate slows down,China is fully stepping into the era of housing inventory.Due to the asymmetry of information in the second-hand housing market,the dispersion of housing information and the complexity of the transaction process,people often choose real estate agents to facilitate the transaction.However,due to the imperfect intermediary legislation in China,the lack of integrity of the client,the high commission of the intermediary industry,uneven service quality and other reasons,the "bypassing the broker" behavior frequently occurs in reality,the contradiction between the client and the real estate agency is therefore increasingly intensified.In judicial practice,the courts have different judgment ideas on "bypassing the broker" disputes,which reflects various legal problems existing in the real estate intermediary industry in China,which need to be solved urgently.The text is divided into four parts,the main content is as follows:The first part clarifies the research theme of this paper according to the intensification of disputes over "bypassing the broker" phenomenon,reviews the adjudication rules established by "No.1 Guiding case" and points out its remaining problems.Then,through the introduction of two typical cases,the comparative analysis of the "Civil Code" after the implementation of China’s judicial practice of "bypassing the broker" dispute cases are still very different reasons.Finally,the differences of the court’s thinking are summarized and summarized,and four focal issues are concluded,that is,how to determine the validity of the clause prohibiting "bypassing the broker";How to identify the nature of the contract involved in the "bypassing the broker" breach;The identification standard of "bypassing the broker" breach of contract;"bypassing the broker" breach of the liability.The second part analyzes the legal effect of the clause forbidding "bypassing the broker".There are three theories about the validity of the prohibition of "bypassing the broker" clause,and the prohibition of "bypassing the broker" clause is a standard clause,and the validity judgment of the prohibition of "bypassing the broker" clause should be determined flexibly based on individual cases.This paper puts forward specific rules for the validity determination of the prohibition of "bypassing the broker" clause,that is,to judge the validity of the prohibition of "bypassing the broker" clause from multiple perspectives such as the subject,form and content of the contract.As the exclusive entrustment clause has more restrictions on the rights of the principal,it should be subject to stricter validity determination standards.The third part,first of all,analyzes the nature of the contract involved in the "bypassing the broker" breach.Then it puts forward the identification standard of "bypassing the broker" breach,which should meet three conditions: the client has accepted the intermediary service of the intermediary;The client bypasses the intermediary to enter into a contract with a third party;The conclusion of the contract has a causal relationship with the previous intermediary service.The final analysis of "bypassing the broker" breach of the liability mainly includes payment of liquidated damages or intermediary remuneration.The fourth part,on the basis of the above research,this paper puts forward some suggestions on the dispute handling of "bypassing the broker" issue.Make clear the identification standard of "bypassing the broker" default;Standardizing the exercise of intermediary remuneration claim.Suggestions on institutional construction include:Establish and improve real estate information sharing mechanism;Promote real estate agents to unilateral agency mode.It is expected that the suggestions put forward in this paper will be helpful to solve the "bypassing the broker" problem.