| The research of deal-switching problem is a frontier of economics,especially law and economics.The first batch of guiding judicial cases was enacted by the Supreme People's Court in 2011.Among them,deal-switching in the field of housing intermediary was ranked No.1.The guiding judicial case is equivalent to the legal precedent in the common law system,which has reference and guidance function in China and other countries with continental law system.The enaction of the cases is a milestone for China's social development and legal construction,and the deal-switching as the first case reflects the top priority In fact,similar problem has been in existence extensively in many sectors,not only in the field of housing intermediary,also in e-commerce,medical health,payment and settlement,vehicle sales,digital music and many other fields.Especially along with the rise and development of the platform business model,deal-switching is very common.In general,deal-switching phenomenon is in the three parties in the dealing at lease,out of economics rationality,one party actively or passively cooperates with another party while skipping the third one which such cooperation takes advantage of the third party and can directly or indirectly harm the interests of the third party,such as the free-rider problem.Deal-switching is not a new phenomenon,but it has been systematically studied by the theorists in recent years,contains rich connotation of law and economics.There are many kinds of deal-switching behavior,and the related researches constitute the systematic deal-switching theory.This article only to take rent-small/sale-big(RSSB)widespread in the field of retail leasing as case.RSSB is a behavior that in the mall,tenant and customer three parties,tenant cooperates with customer skipping mall and trading directly at a lower price after they using the information and service provided by the mall,hiding the real sales information from mall to avoid rent payment which based on tenant's sales.RSSB brings risk to mall.On the surface,in the lease relationship between tenant and mall,the tenant(jointly with the customer)pays less or does not pay rent through RSSB,which is a breach of the lease contract,and has the free-rider problem.But in fact,out of economics rationality,RSSB is the inevitable choice for tenant and efficient breach in the situation of the mall makes the rent price deviated from a reasonable level rely on the platform advantage,so as to eliminate or restrict competition.There fore,free-riding and competition-promoting are the duality of RSSB,although detrimental to fairness,but can improve efficiency.In the face of the duality of RSSB with the coexistence of positive and negative characteristics,on the one hand,if the efficiency of promoting competition is to be achieved,the unfair of free-riding will be accompanied,on the other hand,if the fairness of non-free-riding is to be realized,the efficiency of promoting competition will be difficult to be obtained.For this kind of problem,the study from the perspective of law alone will have the deficiency of valuing fairness over efficiency,while the study from the perspective of economics alone will have the deficiency of valuing efficiency over fairness.This paper attempts to use the theories and methods of law and economics,mainly the legal design idea of incentive compatibility,and from the perspective of tenancy structure(fixed rent,percentage rent and combinations),which is the fundamental motivation of RSSB,sort out the contradiction of unclear relationship between legality and rationality behind RSSB and solve the dilemma between fairness and efficiency.The research is carried out according to the following structure:first of all,analysis the behavior characteristics and the main motivation of RSSB through case study,which concluded that percentage rent is the root cause of RSSB.On the basis of the existing tenancy structure theory,discusses that although the percentage rent can share the business risk by mall and tenant,but in reality,it is easy to generate the risk of RSSB,while the fixed rent cannot effectively share the business risk,but it will not generate the risk of RSSB.The problem of RSSB turns into the problem of choosing tenancy structure under the coexistence of business risk and RSSB risk.Therefore,this paper uses the incentive mechanism design model of principal-agent theory to construct the optimal incentive tenancy structure,seeks for the basic characteristics of the optimal incentive tenancy structure in the trade-off between business risk and RSSB risk,and puts forward the "new theory of tenancy structure" under the new condition of RSSB.Then,applied the "new theory of tenancy structure" to real cases,selected typical types of retail leasing,including shopping mall,department store and home furnishing mall,through indepth interview and questionnaire investigation to obtain the relevant data,build the regression model(multivariable regression and threshold autoregression)and propensity score matching model to examine the basic conclusion of " new theory of tenancy structure ".Finally,based on the " new theory of tenancy structure ",proposes to integrate the principle of incentive compatibility,the concept of economic efficiency and the rule of reason into law-making and enforcement,so as to attain a highly orderly automatic settlement mechanism,achieve fairness in a more efficient way and make fairness and efficiency get unified.The main conclusion in this paper is the " new theory of tenancy structure ",which is considering business risk(the parties in the leasing contract are unwilling to bear the business risk alone)and RSSB risk(the parties in the leasing contract have to consider the risk of RSSB),tenancy structure setting should follow the principles including:(1)when the degree of business risk is far higher than that of RSSB risk(static or dynamic),more applicable into percentage rent structure.(2)when the risk level of RSSB is much higher than that of business(static or dynamic),it is more suitable for fixed rent structure.(3)when the degree of business risk and RSSB risk is equal(it is impossible to clearly distinguish which is higher and which is lower),the mixed rent structure is more suitable(narrow sense),and when the business risk is slightly higher,the proportion of percentage rent in the mixed structure will be increased;when the risk of RSSB is slightly higher,the proportion of fixed rent in the mixed structure will be increased.On the whole,when the business risk and RSSB risk coexist,the mixed rent structure(generalized)is more efficient and can be continue to optimize the tenanty structure by adjusting the unit price of fixed rent and the rate of percentage rent according to the relative degree of the business risk and RSSB risk,so as to achieve the effect of incentive compatibility.The idea and the conclusions in this article are also applicable to research other contract problems related to the principal-agent relationship which busines risk and deal-switching risk coexist,such as employment compensation,land leasing and intermediary trade,and other cases of deal-switching,and hopes to enrich the existing theory,such as tenancy structure theory,contract theory and other theories in law and economics.The topic of this paper is one of the sub-project of "The B-T-C Paradigm and Application for Deal-Switching P roblems" hosed by supervisor,a program sponsored by the National Natural Science Foundation of China,and its basic idea has been reflected in the project research report.The new developments in this paper mainly include:first,emphasizing the design concept and principle of incentive compatibility and introducing it into the research of deal-switching problem;Second,it proposed and enriched the content of "new theory of tenancy structure".The third is the construction of theoretical model and empirical model,from qualitative research to quantitative research.RSSB is only a specific field of law and economics research of deal-switching theory,some problems also need to be further explored. |
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