An Analysis Of Disputes Arising Out Of "By-pasing" The Agent In Transactions Of Pre-owned Real Estate

As China has a big population but limited land resources, and as Chinese peoplealways have the traditional idea of “purchasing homes as an investment for their livinghookwhen old”, also because of “imbalance between supply and demand” in the real estatemarket, buying a house has become the life goal of the most people.In addition, the rapiddevelopment of the market economy has laid the solid economic basis for the prosperousdevelopment of the real estate market. However, in real estate transaction process, thesecond-hand house transaction has become a tendency, and it is accompanied with theuniversal phenomenon-“by-passing the agent” in the whole process. Throughout thepractice of real estate transaction, you will easily discover that,“by-passing the agent” hasbecome the “hot potato”, both to the second-hand house market and intermediary companyitself. Whether the “by-passing the agent” problem could be solved reasonably relates tothe health and sustainable development of market economy, and it is also about theconstruction of the harmonious society. Therefore, this article attempts to seek the effectiveway to solve the dispute of “by-passing the agent” reasonably based on analysis anddiscussion of those phenomenon.On December20,2011,the Supreme People’s Court issued the guidance case about“by-passing the agent” affirming the responsibility of the intermediate contract, it hasindicated the path in the judicial practice. This article takes this document as a background,and takes a full account about the basic principle and the legal rule of contract, also analysethe responsibility of “by-passing the agent”, try to enhance the instructing practice. Thisdissertation will focuse on important cases and pay attention to the practices in real estatemarket while conducting legal analysis. This dissertation will primarily focus its legalanalysis in the contract law area. This disertation will try to make suggestions with regardto relevant problems, which will protect the interest of home buyers and make a balancedallocation of rights and duties among home buyers, housing agents and home sellers.Ultimately, a healthy market is in the best interest of everybody. Therefore, it is also theobjective of the suggestion.