Research On The Legal Issues Of "Jumping Orders" In Second-hand House Selling

As an important part of modern service industry,real estate brokerage industry is an important force in China's real estate industry and occupies an important position in China's real estate industry chain.In the second-hand housing market,more and more people will choose to entrust intermediary service agencies to find more suitable trading partners and trading opportunities.However,due to the loose industry norms,the lag of legal provisions and the lack of morality of the parties concerned,disputes between the real estate intermediary and the client continue,especially in the second-hand housing market where "jumping orders" are common.This not only damages the legitimate rights and interests of the parties concerned,but also hinders the healthy development of the real estate intermediary market.Therefore,this article will study the legal issues of"jumping orders" in the second-hand housing sales and seek reasonable countermeasures to solve the disputes over "jumping orders".According to the nature of the phenomenon,there are three main reasons why it is difficult to identify the act of "jumping orders" in practice:first,the nature of the real estate intermediary service contract and the validity of the clause prohibiting "jumping orders" are ambiguous.China's contract law does not typify the real estate intermediary service contract.by comparing the nature of the real estate intermediary service contract with that of the entrustment contract and the intermediary contract,the real estate intermediary service contract should be a mixed contract with the entrustment nature and the intermediary nature.in the application of relevant laws,analogical applicability can be adopted,and the relevant provisions of the intermediary and the entrustment can be analogously applied.However,it is forbidden to use the "jump order" clause as a standard clause.In order to protect the legitimate rights and interests of all parties as much as possible,it cannot be simply determined as valid or invalid,and it should be comprehensively determined according to the angles of all parties and various factors.Second,the opinions on the application of the law are difficult to unify.In practice,"jump order" is often confused with "jump order breach." Jump order "does not mean"jump order breach."Jump order" is only a legal act,emphasizing the act itself,while"jump order breach" involves not only the judgment of facts but also the judgment of legal consequences.Third,the guiding scope of guiding cases is limited.The guiding cases of the Supreme People's Court are of guiding significance for judicial practice.However,China does not apply case law,and the guiding cases have limited scope of action in judicial practice.It is not only hoped to solve the relevant disputes caused by"jumping orders " in guiding cases.Based on the existing legal disputes related to "jumping orders",relief and regulation can be carried out through the following ways:first,according to the content of the contract,power can be exercised according to law,including the right to pay necessary expenses,the right to intermediary compensation and the right to compensation for breach of contract.when the right to intermediary compensation and the right to compensation for breach of contract are competing,the real estate intermediary can choose one of the claims.Second,when private law remedies cannot protect legitimate rights and interests,they can also bring a lawsuit through the court,or report complaints to the government and other relevant functional departments,which will make administrative punishment.Third,according to the principle of balance of interests,we should improve the access mechanism of real estate intermediary,clarify the reason and division standard of intermediary remuneration,set up the obligation of information disclosure in the intermediary market and perfect the system of trade associations,and regulate the behavior of all parties from the legislative and trade levels.