Guiding Cases in Perspective TM 指导性案例透视

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1 Guiding Cases in Perspective TM TM 指导性案例透视 Dr. Mei Gechlik Founder and Director, China Guiding Cases Project Minmin Zhang Associate Managing Editor, China Guiding Cases Project Yanzhou Chen Editor, China Guiding Cases Project Guiding Case No. 1: CGCP Annotations April 30, 2016 Edition The citation of this piece is: Mei Gechlik, Minmin Zhang, & Yanzhou Chen, Guiding Case No. 1: CGCP Annotations, STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding Cases in Perspective TM, Apr. 30, 2016, The authors thank Oma Lee for assisting in the translation of the Chinese version of this piece into English and Jordan Corrente Beck for editing the English version. Guiding Cases in Perspective TM is a unique serial publication of the China Guiding Cases Project that identifies the original judgments selected by the Supreme People s Court, examines their transformation into Guiding Cases, and explores the treatment of the Guiding Cases in subsequent cases.

2 2 I. The Process of Selecting Guiding Case No. 1 Shanghai Centaline Property Consultants Limited v. TAO Dehua, An Intermediation Contract Dispute ( Guiding Case No. 1 or GC1 ) is one of the guiding cases ( GCs ) included in the first batch of GCs released by the Supreme People s Court ( SPC ) on December 20, Its original judgments are the (2009) Hong Min San (Min) Chu Zi No. 912 Civil Judgment rendered by the Hongkou District People s Court of Shanghai Municipality 2 and the (2009) Hu Er Zhong Min Er (Min) Zhong Zi No.1508 Civil Judgment rendered by the No. 2 Intermediate People s Court of Shanghai Municipality. 3 This case was selected as a GC through the following process (see Chart 1): 4 1. On December 31, 2010, the Office for the Work on Case Guidance of the SPC sent a notice to all higher people s courts nationwide on submitting candidate GCs for the Office s consideration. 2. On May 20, 2011, the Adjudication Committee of the Higher People s Court of Shanghai Municipality decided to recommend this case as a candidate GC to the SPC after discussion. 3. After research and discussion, the Office for the Work on Case Guidance of the SPC sent this case to the First Civil Tribunal for review and comment. The First Civil Tribunal considered this case to have significance on guiding the adjudication of similar cases and agreed to select it as a GC. On June 13, 2011, after discussion, the Adjudication Committee of the SPC confirmed this case as a GC and released it on December 上海中原物业顾问有限公司诉陶德华居间合同纠纷案 (Shanghai Centaline Property Consultants Limited v. TAO Dehua, An Intermediation Contract Dispute), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Case (EGC1), Jan. 9, 2012 Edition, 2 The first-instance judgment has not been found and may have been excluded from publication. Accordingly, these annotations focus on a comparison of GC1 and the second-instance judgment of the underlying case. 3 陶某某与上海中原物业顾问有限公司居间合同纠纷上诉案 (2009) 沪二中民二 ( 民 ) 终字第 1508 号 (A certain TAO and Shanghai Centaline Property Consultants Limited, An Appeal Case on an Intermediation Contract Dispute,(2009) Hu Er Zhong Min Er (Min) Zhong Zi No. 1508), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding Cases in Perspective TM, Guiding Case No. 1 Original Second-Instance Judgment, Apr. 30, 2016, 4 See 最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme People s Court), 指导案例 1 号 上海中原物业顾问有限公司诉陶德华居间合同纠纷案 的理解与参照 (Understanding and Referring to Guiding Case No. 1, Shanghai Centaline Property Consultants Limited v. TAO Dehua, An Intermediation Contract Dispute), 人民司法 应用 (THE PEOPLE S JUDICATURE APPLICATION), Issue No. 7 (2012). For the process of selecting Guiding Cases, see 最高人民法院关于案例指导工作的规定 (Provisions of the Supreme People s Court Concerning Work on Case Guidance), passed by the Adjudication Committee of the Supreme People s Court on Nov. 15, 2010, issued on and effective as of Nov. 26, 2010, STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Cases Rules, June 12, 2015 Edition,

3 3 Chart 1: The Process of Selecting Guiding Case No. 1 II. Comparison Between Guiding Case No. 1 and Its Original Judgment 1. Basic Facts of the Case Based on the Basic Facts of the Case section of GC1, the following table compares the similarities and differences between GC15 and the original second-instance judgment: Guiding Case No. 1 1 Original Second-Instance Judgment The court handled the case and ascertained: (1) In the second half of 2008, the original property right holder, LI, went to multiple housing intermediary companies to list for sale the house involved in this case. (2) On October 22, 2008, a certain real-estate brokerage limited company in Shanghai took defendant TAO Dehua to see the house; on November 23, a certain realestate consulting limited company in Shanghai Essentially the same. Essentially the same. 5 上 海 中 原 物 业 顾 问 有 限 公 司 诉 陶 德 华 居 间 合 同 纠 纷 案 (Shanghai Centaline Property Consultants Limited v. TAO Dehua, An Intermediation Contract Dispute), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding Cases in PerspectiveTM, Guiding Case No. 1 Highlighted Edition, Apr. 30, 2016,

4 4 2 3 Guiding Case No. 1 (hereinafter referred to as a certain real-estate consulting company ) took TAO Dehua s wife, a certain Ms. CAO, to see the house; and, on November 27, plaintiff Shanghai Centaline Property Consultants Limited (hereinafter referred to as Centaline Company ) took TAO Dehua to see the house and signed the Written Confirmation of Request to Buy Real Estate with TAO Dehua on the same day. (3) Clause 2.4 of the Written Confirmation stipulated that [where] within six months of TAO Dehua s examining the real estate, TAO Dehua or [any] person associated with TAO Dehua, including his principal, agent, representative, and undertaker, used information, opportunities, or other such conditions provided by Centaline Company to reach a sale and purchase transaction with a third party without going through Centaline Company, TAO Dehua should pay Centaline Company liquidated damages of 1% of the actual closing price for the sale and purchase of the real estate. (4) At the time, Centaline Company quoted 1.65 million yuan for the house [in question], while the [abovementioned] real-estate consulting company quoted 1.45 million yuan and actively negotiated with the seller on price. (5) On November 30, under intermediation by this realestate consulting company, TAO Dehua and the seller signed a housing sale and purchase contract with a closing price of 1.38 million yuan. Later, the buying and selling parties completed the procedure for transferring registration and TAO Dehua paid the realestate consulting company a commission of 13,800 yuan. Centaline Company claimed: TAO Dehua used sale information provided by Centaline Company regarding a certain house [located] at Number X, Zhuzhou Road, Hongkou District, Shanghai Municipality, intentionally bypassed the intermediary, and directly signed, on his own [accord], a housing purchase contract with the seller, violating the stipulations of the Written Confirmation of Request to Buy Real Estate[, a confirmatory contract to purchase real estate through the plaintiff]. [This constituted] an act of malicious bypassing. [Centaline Company] requested that the court order TAO Dehua pay, in accordance with the [terms of the parties ] contract, liquidated damages of 16,500 yuan. TAO Dehua defended his position, claiming: The original property rights holder of the house involved in this case, a certain LI, had entrusted multiple intermediary companies with selling the house. Original Second-Instance Judgment Essentially the same, but also mentions that another act that can constitute breach of contract is the conclusion of sale and purchase transaction with the seller. Essentially the same, but does not mention while the [above-mentioned] real-estate consulting company quoted 1.45 million yuan and actively negotiated with the seller on price. Essentially the same. Essentially the same, but without the following expressions: Hongkou District ; intentionally bypassed the intermediary ; directly signed, on his own [accord], a housing purchase contract with the seller ; and [This constituted] an act of malicious bypassing. Essentially the same, but without the following expressions: TAO Dehua did not use the information

5 5 Guiding Case No. 1 Centaline Company neither exclusively controlled the housing information nor acted as an exclusive agent in the sale. TAO Dehua did not use the information provided by Centaline Company; there did not exist any act [amounting to] breach of contract by bypassing. Original Second-Instance Judgment provided by Centaline Company ; and bypassing. Overall, the Basic Facts of the Case section of GC1 is largely based on the original second-instance judgment, but the GC uses the term bypass, which does not appear in the original second-instance judgment. 2. Reasons for the Adjudication The Hongkou District People s Court of Shanghai Municipality rendered the firstinstance judgment: Defendant TAO Dehua should, within ten days of this judgment s coming into effect, pay plaintiff Centaline Company liquidated damages of 13,800 yuan. Dissatisfied with the judgment, TAO Dehua appealed to the No. 2 Intermediate People s Court of Shanghai Municipality, which rendered a judgment: (1) Repeal the (2009) Hong Min San (Min) Chu Zi No. 912 Civil Judgment of the Hongkou District People s Court of Shanghai Municipality. (2) Centaline Company s litigation claim requesting that TAO Dehua pay liquidated damages of 16,500 yuan is not supported. GC1 quite clearly provides the adjudication reasons of the No. 2 Intermediate People s Court of Shanghai Municipality, but there are still differences. Based on the Reasons for the Adjudication section of GC1, the following table compares the similarities and differences between GC1 and the original second-instance judgment: 1 Guiding Case No. 1 The Written Confirmation of Request to Buy Real Estate signed by Centaline Company and TAO Dehua was of the nature of an intermediation contract, and the stipulation of Clause 2.4 prohibiting bypassing was a standard clause commonly found in intermediation contracts for the sale and purchase of housing. The intent of [the clause] was to prevent the buyer from using housing information provided by the intermediary company but bypassing the intermediary company to purchase the house so as to make the intermediary company unable to obtain the commission that it deserved. The stipulation did not include circumstances that exempted one party from liability, increased the other party s liability, or ruled out the other party s primary rights, and [, thus, it] should be determined to be valid. Original Second-Instance Judgment Essentially the same meaning, but without the following expression: was a standard clause commonly found in intermediation contracts for the sale and purchase of housing. The intent of [the clause] was to prevent the buyer from using housing information provided by the intermediary company but bypassing the intermediary company to purchase the house so as to make the intermediary company unable to obtain the commission that it deserved.

6 6 2 3 Guiding Case No. 1 According to this clause, the key to determining whether the buyer breached the contract by bypassing is to see whether the buyer used housing information, opportunities, or other such conditions provided by the intermediary company. If the buyer did not use the information, opportunities, or other conditions provided by the intermediary company, but obtained the same housing information through other proper means of which the public could learn, the buyer had the right to choose an intermediary company with a lower quoted price and better service to facilitate formation of a housing sale and purchase contract without constituting a breach of contract by bypassing. In this case, the original property rights holder listed the same house for sale through multiple intermediary companies; TAO Dehua and his family members separately came to know the same housing information through different intermediary companies and [one of these] intermediary companies facilitated formation of the housing sale and purchase contract. Therefore, TAO Dehua did not use information or opportunities provided by Centaline Company and [his acts] did not constitute breach of contract. Centaline Company s litigation claim was not supported. Original Second-Instance Judgment No such expressions, but provides more detail regarding when various intermediary companies provided the buyer with the housing information and whether those companies facilitated the negotiation about the price between the buyer and the seller. Essentially the same. Overall, there are quite a few differences between the Reasons for the Adjudication section of GC1 and the original second-instance judgment. The analysis of these differences touches on the reasons for selecting GC1 as a GC, which are discussed below. III. Reasons for Selecting Guiding Case No. 1 GC1 involves the issue of bypassing that frequently occurs in the sale and purchase of second-hand housing intermediation disputes. Bypassing means the phenomenon in which a buyer selects housing through an intermediary company s intermediation services, but intentionally bypasses the intermediary company to directly reach a sale transaction with the owner of the house or to reach a sale transaction with the owner of the house through other intermediary companies. 6 According to the Office for the Work on Case Guidance of the SPC, GC1 was selected because it addresses the issue that in practice, there have been different understandings of the legal validity of the clause prohibiting bypassing stipulated in an intermediation contract for the sale and purchase of housing and of what circumstances constitute a breach of contract by bypassing. 7 On this, the SPC provides the following summary in the Main Points of the Adjudication section of GC1, which reads: 6 最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme People s Court), supra note 4, at See id.

7 7 In an intermediation contract for the sale and purchase of housing, stipulations prohibiting a buyer from using housing information provided by an intermediary company to sign a housing sale and purchase contract with a seller while bypassing the intermediary company are legal and valid. However, when a seller lists the same house for sale through multiple intermediary companies and the buyer can obtain the same housing information through other proper means of which the public can learn, the buyer has a right to choose an intermediary company with a lower quoted price and better service to facilitate formation of a housing sale and purchase contract. Such acts do not [entail the] use of housing information from the intermediary company with whom [the buyer] has previously contracted; therefore, [they] do not constitute a breach of contract. Because the original second-instance judgment of GC1 is in conformity with legal provisions and stipulations agreed by the parties, in line with the legal spirit of fairness and reasonableness, is conducive to encouraging intermediate companies to gain competitive advantages by providing intermediary services of high quality at good prices, promotes healthy competition in the intermediation market for second-hand housing, and is conducive to protecting the buyer s legal right to choose in the purchase of housing, the SPC determined that this case provides guidance on the adjudication of similar cases and selected it as a GC. 8 IV. Brief Comments With respect to the similarities and differences between GC1 and the original secondinstance judgment and to the reasons for selecting the case as a GC, the authors have the following observations. 1. Guiding Case No. 1 Does Not Analyze in Detail the Legal Validity of a Clause Prohibiting Bypassing Although GC1 was selected because, among other reasons, of the fact that, in practice, parties have different understandings of the legal validity of the clause prohibiting bypassing stipulated in an intermediation contract for the sale and purchase of housing, 9 GC1 does not analyze this issue in detail. The relevant analysis was instead provided by the Office for the Work on Case Guidance of the SPC after the issuance of GC1. With respect to the legal validity of a clause prohibiting bypassing, the original second-instance judgment states: [The contract at issue in this case contained] a clause regarding liability arising from breach of contract when a client bypasses an intermediary. [This clause] aims at protecting the rights and interests that an intermediary company should 8 9 See id. Id.

8 8 enjoy in accordance with law as the intermediary [of its client]. [The clause] does not include circumstances that exempt one party from liability, increase the other party s liability, or rule out the other party s primary rights, and [, thus, it] should be determined to be valid. The Reasons for the Adjudication section of GC1 provides: [in this case,] the stipulation of Clause 2.4 prohibiting bypassing was a standard clause commonly found in intermediation contracts for the sale and purchase of housing. The intent of [the clause] was to prevent the buyer from using housing information provided by the intermediary company but bypassing the intermediary company to purchase the house so as to make the intermediary company unable to obtain the commission that it deserved. The stipulation did not include circumstances that exempted one party from liability, increased the other party s liability, or ruled out the other party s primary rights, and [, thus, it] should be determined to be valid. Further, the Main Points of the Adjudication section of GC1 states: In an intermediation contract for the sale and purchase of housing, stipulations prohibiting a buyer from using housing information provided by an intermediary company to sign a housing sale and purchase contract with a seller while bypassing the intermediary company are legal and valid. After the issuance of GC1, the Office for the Work on Case Guidance of the SPC gave a detailed analysis on the above-mentioned issue. The Office first explained why a clause prohibiting bypassing is a type of standard clause: In practice, a clause prohibiting bypassing is usually prepared beforehand in a contract by the intermediary company. Then, [the contract] is directly presented to the principal [i.e. the client] for signature to confirm [his or her approval of the content] during the intermediation. This type of clause that is prepared in advance for repetitive use and is not negotiated with the other party when the contract is signed is a standard clause by nature. 10 Because clauses that prohibit bypassing are standard clauses in contracts between a client and an intermediary, they must comply with Article 40 of the Contract Law of the People s Republic of China, (the Contract Law ), which provides: 11 Where a standard clause has a circumstance stated in Article 52 or Article 53 of this Law, or the party which supplies the standard clause exempts itself from liability, increases the other party s liability, or rules out the other party s 10 最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme People s Court), supra note 4, at 中华人民共和国合同法 (Contract Law of the People s Republic of China), passed and issued on Mar. 15, 1999, effective as of Oct. 1, 1999, Article 40,

9 9 primary rights, the clause shall be invalid. Article 52 of the Contract Law provides: 12 A contract shall be invalid under any of the following circumstances: (1) one party enters into the contract by means of fraud or coercion, harming the State s interests; (2) there is malicious collusion to harm the interests of the State, a collective, or a third party; (3) an illegal purpose is concealed under the guise of legal forms; (4) public interests are harmed; or (5) [the contract] violates the mandatory provisions of laws and administrative regulations. Article 53 provides: 13 The following exemption clauses in a contract are invalid: (1) [a clause] that causes personal injury to the other party; (2) [a clause] that, due to intent or gross negligence, causes property damage to the other party. The Office for the Work on Case Guidance of the SPC does not consider standard clauses prohibiting bypassing raise the sort of concern Article 52 and Article 53 [of the Contract Law] are meant to address. Its reasons are as follows: Because stipulations prohibiting bypassing usually do not involve content that would harm the interests of the State, a collective, a third party, or the public interest in the society. Their main aim is to prevent dishonest acts of buyers, rather than having an illegal purpose. Laws and administrative regulations also do not have provisions stopping parties from [entering into contracts with] clauses prohibiting bypassing. Moreover, such clauses are not liability exemption clauses. Therefore, they do not fall under the circumstances provided in Article 52 and Article 53 of the Contract Law. 14 (emphasis added) Regarding whether a clause prohibiting bypassing involves situations where the party which supplies the standard clause exempts itself from liability, increases the other party s liability, or rules out the other party s primary rights, as provided in the Contract Law, the Office for the Work on Case Guidance of the SPC first stated that increasing [the other party s] liability means the standard clause covers obligations that the other party should not bear under normal circumstances and ruling out [the other party s] primary rights refers to ruling out the primary rights that the other party should enjoy under normal 12 Id. Article Id. Article 最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme People s Court), supra note 4, at 31.

10 10 circumstances. 15 Therefore, in order to determine whether a clause prohibiting bypassing increases the other party s liability and/or rules out the other party s primary rights, one should, based on the nature of the specific contract, decide the two parties obligations and rights under normal circumstances. The Office for the Work on Case Guidance of the SPC s analysis is as follows: Based on the nature of an intermediation contract for the sale and purchase of second-hand housing, the intermediary company s primary obligation is to, according to the principal s request, honestly report to the principal opportunities for entering into a contract and offer intermediary services facilitating contract formation. [The intermediary company s] right is to receive remuneration after the formation of the contract that it facilitates. The principal s primary right is to receive information and services. His primary obligation is to pay remuneration when the intermediary company has facilitated the formation of the contract. 16 The Office for the Work on Case Guidance of the SPC points out that the purpose of a clause prohibiting bypassing is to prevent a buyer from avoiding the performance of his own contractual obligations, i.e., bypassing the intermediary so as not to pay the intermediary the remuneration it is owed. Therefore, such a clause does not involve situations where the party which supplies the standard clause exempts itself from liability, increases the other party s liability, or rules out the other party s primary rights, as provided by the Contract Law. 17 Two points are worth considering. First, since the Office for the Work on Case Guidance of the SPC has analyzed in detail the above issues, shouldn t the analysis be included in GC1 to ensure that courts handling subsequent cases can make a more accurate reference to the GC? Second, the SPC only listed Article 424 of the Contract Law of the People s Republic of China in the Related Legal Rule(s) section of GC1. That provision states: An intermediation contract is a contract, in which the intermediary [agrees to] report to the principal opportunities for entering into a contract or provide [the principal] with intermediary services to facilitate contract formation and, [in return,] the principal [agrees to] pay remuneration. Article 424 has no direct relevance to solving the legal issues in GC1. Based on the above discussion, in the authors opinion, the SPC should list Article 40, Article 52, and Article 53 of the Contract Law in the Related Legal Rule(s) section to increase the reference value of GC1. 2. The Statements in Guiding Case No. 1 about the Circumstances that Constitute a Breach of Contract by Bypassing Are Not Based on the Original Second-Instance Judgment Id. Id. Id.

11 11 With respect to what circumstances would constitute a breach of contract by bypassing, the original second-instance judgment actually has no clear explanation of this issue. On the issue of whether the buyer in this case improperly used the information and opportunities provided by the intermediary company and then entrusted others to conclude the transaction, thereby breaching the contract, the original second-instance judgment provides: According to the Contract Law and stipulations agreed upon by both parties, if the principal, for the purpose of not paying or paying less commission, improperly impedes the satisfaction of conditions for commission payment, such as concluding the transaction in private between the buyer and seller or entrusting others to conclude the transaction, the conditions would be deemed to have been satisfied and the principal should pay the intermediary the commission. The original second-instance judgment then proceeds to lay out facts of this case in detail: the seller of the house entrusted three intermediary companies to sell the house, but none of them was entrusted exclusively; all of the three intermediary companies provided TAO Dehua with information related to the house involved in the case and opportunities for entering into a contract, as well as provided intermediary services by letting [TAO Dehua] view the housing on-site; but Centaline Company was not the first company to report to TAO Dehua the contracting opportunities or provide him with the house-viewing services; Centaline Company only provided TAO Dehua with house-viewing intermediary services once and did not intermediate between the buyer and the seller regarding the price; another company, through provision of its intermediary service, facilitated both the buyer and the seller to reach a sale transaction at a lower price. Finally, the second-instance judgment concludes: Therefore, TAO [Dehua] did not, for the purpose of avoiding paying commission, privately reach a transaction with the seller of the housing or improperly use Centraline Company s information and opportunities and then entrusted others to conclude the transaction. Therefore, his acts did not constitute a breach of contract. With respect to what circumstances constitute a breach of contract by bypassing, the Reasons for the Adjudication section of GC1 provides: [T]he key to determining whether the buyer breached the contract by bypassing is to see whether the buyer used housing information, opportunities, or other such conditions provided by the intermediary company. If the buyer did not use the information, opportunities, or other conditions provided by the intermediary company, but obtained the same housing information through other proper means of which the public could learn, the buyer had the right to choose an intermediary company with a lower quoted price and better service to facilitate formation of a housing sale and purchase contract without constituting a breach of contract by bypassing.

12 12 Then, the Reasons for the Adjudication section of GC1 states: In this case, the original property rights holder listed the same house for sale through multiple intermediary companies; TAO Dehua and his family members separately came to know the same housing information through different intermediary companies and [one of these] intermediary companies facilitated formation of the housing sale and purchase contract. Therefore, TAO Dehua did not use information or opportunities provided by Centaline Company and [his acts] did not constitute breach of contract. Centaline Company s litigation claim was not supported. Finally, the above statements are summarized as the Main Points of the Adjudication of GC1, which includes the following: [W]hen a seller lists the same house for sale through multiple intermediary companies and the buyer can obtain the same housing information through other proper means of which the public can learn, the buyer has a right to choose an intermediary company with a lower quoted price and better service to facilitate formation of a housing sale and purchase contract. Such acts do not [entail the] use of housing information from the intermediary company with whom [the buyer] has previously contracted; therefore, [they] do not constitute a breach of contract. It can be seen from the above analysis that the Reasons for the Adjudication section of GC1 directly mentions the concept of bypassing and defines the conditions for a breach of contract by bypassing. However, the original second-instance judgment actually contains no reference to the term bypass, nor does the court use the above standards to determine whether the buyer s acts breached the intermediation contract that it signed with the intermediary company. Without the factual basis behind the original second-instance judgment, GC1 only provides a rather vague standard. This vague standard could result in confusion in subsequent adjudication, as reflected in the following example: a buyer learns of a certain housing for the first time from information provided by intermediary company A. Although the buyer s will to purchase the housing has been formed, he does not purchase it immediately. Instead, he actively contacts intermediary companies B, C and D to see whether the seller puts the same housing up for sale through these intermediary companies. In reality, there is a high chance that this could happen. Thus, the buyer again obtains information about this housing from intermediary companies B, C and D, and, finally, chooses the intermediary company that offers the lowest quoted price and best service to facilitate formation of the housing sale contract. According to the Main Points of the Adjudication of GC1, in this situation, because the buyer can obtain the same housing information through other proper means of which the public can learn, the buyer has a right to choose an intermediary company with a lower quoted price and better service to facilitate formation of a housing sale and purchase contract. Such acts do not [entail the] use of housing information from the intermediary company with whom [the buyer] has previously contracted; therefore, [they] do not constitute a breach of contract.

13 13 Is this conclusion fair to intermediary company A? In the above example, the buyer intentionally bypasses intermediary company A to reach a sale transaction with the owner of the house through other intermediary companies; but because the standard in GC1 is vague, in the sense that it has no reference to whether the buyer intentionally bypassed intermediary company A, the acts of the buyer would not constitute a breach of contract. What is interesting is that, as discussed in Part III of this piece, the Office for the Work on Case Guidance of the SPC defines bypassing as the phenomenon in which a buyer selects housing through an intermediary company s intermediation services, but intentionally bypasses the intermediary company to directly reach a sale transaction with the house owner or to reach a sale transaction with the house owner through other intermediary companies. 18 Yet, the word intentionally is not incorporated into the Main Points of the Adjudication of GC1. 18 最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme People s Court), supra note 4, at 30.