Study On The Broker's Obligation To Inform In Housing Transaction

In the prevailing second-hand housing market, the mainstream thereof is the transactions in which brokers get involved. Meanwhile, brokers in the housing trading are mostly legally obligated to truly inform the items related to the contract, otherwise they cannot fulfill the duties to precisely report the chance to enter into contracts. However, in reality, it is quite common that brokers violate their obligation to inform accurately and truly. When settling this issue, the legislation, as well as academic study, has their weak points respectively. Therefore, aiming at the real problems of obligation to inform, this paper primarily studies on two basic questions as followed, based on the legislative and positive analysis: firstly, how to define the"true and accurate"state of broker's obligation to inform; secondly, the range of information that brokers are obligated to inform, accordingly, it discusses the liability and exemption for brokers who break their obligations.This paper includes three parts, that is, introduction, main body (divided into four chapters) and conclusion, as defined below:The introduction elaborates the research background, the purpose and current research status as well as ideas and methods this paper adopts. At present, the trade of brokerage housing resides fiduciary crisis due to the fact that brokers violate their duty to inform truthfully, leading to great dispute in the housing transaction. Conversely, it lacks the objective criterion for judiciary practice to judge whether brokers have fulfilled their obligations to inform, because vulnerable academic study fails to give legislation theoretical support. In this sense, it has practical importance.Chapterâ… : Overview of broker's obligation to inform truly and accurately. In the beginning, it gives definition of this obligation and makes comparison among several confusable terms. Furthermore, analysis takes place in legal basis of obligation to inform and its necessity and feasibility. Besides, combining with the affix, it investigates the legislative and positive situation of broker's obligation to inform, and study on bi-behavioral pattern of broker in the housing transaction on account of typical cases. Finally, it points out two core questions intended to settle: one is how to define the"true and accurate"state of broker's obligation to inform; the other is the range of information required to notify.Chapterâ…¡: Clarify of the range of information which brokers shall truly inform. Specifically, after elaborate introduction on current provisions and legislative attitude, the content of notice for broker is ascertained as major information closely related to contract. Subsequently, it gives standards on how to define the major information, which plays decisive role in the housing transaction. In view of subject defining the major information, it sets the"reasonable and prudent person"standard. Ultimately, in accordance with differing objects told, information of housing and the information of buyer are divided, thereby illustrating the range of information brokers shall inform.Chapterâ…¢: The judgment of"true and accurate"state for broker's obligation. The overall standard, in my point of view, is to inform truly, comprehensively, appropriately and promptly. It comes in three parts: first and foremost, the overall standard of truly informing and its justification. Secondly, broker shall promise that the information notified meets the requirement of"truth and comprehension". By means of affix, broker shall fulfill his obligation to examine and check to his advantage, through the analysis of broker's information source. Thirdly, with regard to the ambiguity arising from obligation of investigation in the legislation and theory, it sets forth the necessity and feasibility of its existence. Finally, standards are set on the form of performance, i.e. brokers in the housing trade shall inform their clients in written, initiative and prompt way.Chapterâ…£: The undertaking of responsibility for brokers who break the obligation to truly inform, which is divided into four parts. First of all, the method of typologically analysis is adopted with regard to pattern of housing broker's violations. Then it analyses the nature of liability for broker who breaks the obligation. Especially, the writer defines the violation of obligation in the frame of contract law. Secondly, it discusses broker's method to assume liability, like entirely or partly losing the right of remuneration, bearing brokerage fee by themselves and additional expenses borne by clients such as attorney fee, fee of evidence preservation and market inspection and others loss which reflect the feature of broker contract. In the end, there is a study on the event of immunity for liability of violation, which can be divided into non-subjective fault, fault of client and agreed event of immunity.The conclusion is a summary of this paper and legislative proposals. Appendix:1.The summarizing analysis of the current effective laws and regulations on the truthfully informing obligations of housing transaction.2.The summarizing analysis of the provisions about truthfully informing obligations of normative trading intermediary contracts in the current housing industry.3.The abstract of empirical research on five typical intermediary institutions of housing transaction in Beijing, focusing on the major problems of this paper.