Can the real estate agent be exempted from liability for the crime of fraud by the principal?

Source: Jiangsu Rule of Law Daily

□ Chen Jiangtao

case:

In June 2019, Huang, in order to impersonate the owner of a certain room in 10 buildings in a certain community, contacted a private seal personnel near the intersection of a certain urban area, forged the contract for the sale and purchase of the commercial housing, fabricated the fact that the commercial house was a property under its name, and provided the false housing for sale at an intermediary service company in Germany. Between October 2019 and April 2020, Huang repeatedly defrauded the victim Cao X of a total of RMB650,000 for the purchase of a house on the pretext of selling the property, and used the proceeds to repay his personal online loans, and the intermediary service company of De X, which played an intermediary role during the sale of the house, charged the victim Cao X an intermediary fee of RMB 20,000.

After Huang surrendered himself to the public security organs because he could not perform his real estate transfer obligations to Cao, in December 2020, Huang was sentenced by the court to eight years in prison and fined 150,000 yuan for fraud, and at the same time ordered Huang to return the loss of 650,000 yuan to the victim Cao. After the enforcement procedure, Huang had no property to enforce, and the victim Cao had not been effectively compensated for his losses so far.

Dispute: Whether the intermediary service company of De X, as the intermediary party, is liable for cao's losses.

analyse:

One view is that the real estate intermediary is only liable to the client when he deliberately conceals the facts or deliberately provides false information, and he only needs to report the situation he knows to the client, and has no obligation to investigate and verify.

Another view is that real estate intermediaries should not only report their own knowledge to the client, but also fulfill the necessary investigation and verification obligations to ensure the authenticity of the relevant information.

The author believes that according to Article 22 of the Measures for the Administration of Real Estate Brokers, "when a real estate brokerage agency signs a house sale and rental brokerage service contract with the client, it shall check the relevant information such as the house and the certificate of ownership of the house entrusted for sale and lease, the identity certificate of the client, and shall prepare a description of the state of the house." With the written consent of the client, the corresponding listing information can be released to the outside world. Real estate brokerage institutions signing housing purchase and lease brokerage service contracts with the client shall check the client's identity certificate and other relevant materials. "The failure of the real estate intermediary to perform or not fully perform the investigation and verification obligation constitutes a competition between the liability for breach of contract and the liability for tort, and what should be borne in the tort liability is supplementary liability." For the parties, they can choose to claim for breach of contract or infringement to protect their own interests. For real estate intermediaries, it is not only necessary to fulfill the obligation to truthfully state, but also to use professional advantages on this basis, give full play to subjective initiative, and fulfill the obligation of investigation and verification of the transaction property, otherwise it will bear adverse consequences.