[case Introduce] ,

The plaintiff GanMou, Yang said: 2005 lawsuit, May 9, through the Shanghai real estate brokerage Co., LTD, hong qiao qiao rainbow company (hereinafter referred to as the defendant, to tang mediacy) a purchase is located the Shanghai linping road, one room, 133 houses and overseas companies pay through the rainbow 200,000 yuan as a deposit. Afterwards, learn new one.the Shanghai XXX Co., LTD. (hereinafter referred to as the company), not all town, the defendant accused to sell the premises for all the requirements, return the charge 200,000 yuan.

Some argue the tang linping road, Shanghai has a room of 133 out to buy houses, the new company in 19 September 2004, and signed to open to booking a contract to the company paid all the purchase. On November 10, 2004 to register for the right to charge. Both the plaintiff, mentioned facts without valid, two mediacy agreement does not agree to continue to perform the contract, it shall not return default has 20 yuan deposit. The case as the agent, according to the facts and law are analyzed, and put forward its own views agent.

[case analysis]

As an ancient deposit, the guarantee law in countries have common rules, but the provisions of specific properties is identical. The deposit are mainly made deposit, a deposit, gold deposit contract, agreement, etc. And the breach of deposit, Made with booking deposit deposit contract coexist, refers to the contract is concluded, aims to guarantee payment of the formal contract. A deposit refers to the delivery of facts as proof of the relation between the deposit contract. Release the deposit refers to withstand the deposit reserve penalties as the right to terminate a contract price down. Refers to the deposit defaults breach of contract shall bear a deposit of sanctions.

According to the relevant laws and regulations, judicial guarantee and the judicial practice, China agreed to gold, a deposit opposites, gold deposit and contract, agreement to deposit defaults. The property of deposit can be stipulated by the parties concerned. The parties may specify in the contract the deposit is a nature, also can agree with mutual exclusion of deposit. Generally, the nature of the deposit in China for breach in the deposit, sacrificed if the deposit contract concluded before or after the performance, the contract and delivery, without definite property, should be presumed as default deposit. If the parties consultation contract concluded in order to achieve the final stage, the purpose of the contract, the parties to a formal deposit enhanced by the trust and constraints between each other. As the supreme people's court on the security of the People's Republic of China for < > of the interpretations of the article 115 regulation: "already consign deposit as agreed by the parties concluded the main contract, guarantee deposit contract concluded the party refuses to the Lord, he shall not be entitled to demand the return of the deposit, party refuses to conclude from the deposit of the contract, shall deposit in double. Therefore, the parties shall stand before the formal contract both sides to consign deposit deposit in nature, not expressly prescribed conditions, the presumed made deposit. If the parties have to make the deposit defaults, deposit deposit made other properties, must make special agreement.

The deposit is no penalty for adducing breach without fault, also burden the breach causes losses to the other party a according to the specific conditions, only a breach of, can apply for zhang deposit penalties. But if there is no penalty for deposit of existence, the supreme people's court on the security of the People's Republic of China for < > of the interpretations of the article 122 regulation legal disclaimer situation, Neither party in the contract, the use of "deposit" or "deposit", and whoever did not set out the content and advance deposit penalties in a certain amount of money to pay each other, not to deposit, not applicable deposit penalties.

In this case, the plaintiff accused parties agreed by party a deposit mediacy and delivery, its purpose is to conclude a formal building business contract, agreement with the feature. Deposit, Therefore according to the relevant laws and the supreme people's court on the security of the People's Republic of China for < > of the interpretations of the first article 115 deposit deposit made whoever is also applicable. If the plaintiff shall return the deposit is required, the defendant cannot sign formal sales contract with houses, scheduled to building business development direction. If the defendant is not really, it is the obligee sale target contract fraud liability or responsibility, not can perform made deposit. Besides the defendant is actually paid by public housing price and the registration holder, once completed housing construction, the ownership for delivery.

Of course, the contract shall be invalid, as the guarantee deposit contract is invalid, the plaintiff from the contract also may request the return of the deposit. But YuanBeiGao parties agreed terms with special mediacy through, the defendant has been registered rights, property right of the defendant, the sale of the property right of the building is not obtained facts is clear. In formally signed building business contract, YuanBeiGao before the building business contract both sides is the real intention. Although have not obtained the ownership into the existing building business contract, and the risk of certain and cannot be directly leads to building business contract shall be invalid. Now no evidence that the defendant is invalid, the open to booking a contract signed nor legal regulations through the house to open to booking a contract shall obtain the right to purchase any houses. Besides YuanBeiGao parties haven't sign formal building business contract, the delivery of the deposit is made of deposit of nature.

[the verdict]

The people's court in hongkou district required deposit is not a legal basis and factual evidence and the appeal not support. While post-sentence two plaintiff didn't appeal.