The word

  respected judge, judge:
  for Chengdu ZY Real Estate Marketing Agency Co. Ltd. v. Sichuan WK residential development Limited commissioned contract dispute case, we accept the entrustment of Sichuan WK residential development company, served as its first agent, we combined with the actual situation of the case to make the following agents:
  one, the original defendant from first to last no agency relationship.
  (a) loan contract no established agency relationship between the two sides.
  first, both is not signed a formal contract of entrusted agency. According to the fourth loan contract "Party B agrees to marketing agency located in Tiaodeng River Chengdu silicate Factory on the real estate development project to Party A. Cooperation in the same conditions for reference "WK Gui Yuan" project, to discuss the marketing agency contract signed completed within one week after Party B's construction." According to the agreement, both sides will negotiate the signing of the contract in the marketing approach, that is after the signing of the formal contract to determine the principal-agent relationship.
  second, loan contract signed, the defendant is not the plaintiff said silicate Factory land use rights, the right to use the land was later accused and Chengdu Xinhui Feng companies have jointly made. More importantly, the plaintiff housing referred to in the second half of 2008, it achieved sales permits, according to the provisions of the real estate management law, commercial housing can only in sales, after a pre-sale permit therefore, in the signing of the contract object does not exist, the lack of the subject matter of the contract is not established the.
  third, no agent matters loan contract (work), permissions, period (including the start of term), such as pay for clear agreement.
  fourth, the defendant to the plaintiff issued without authorization. According to the sixty-fifth general principles of civil law "entrust agency of civil legal acts, can use written form, also can use the oral . The law provides for written form, it shall be in written form. If the power of attorney shall clearly state the agent's name, agent matters, the scope and duration, and commissioned by the signature or seal of the person "and the" Regulations "City real estate development and management twenty-ninth" real estate development enterprises commissioned intermediary agent for the sale of commercial housing, should be issued orders to the intermediary organizations. Intermediary sales agency shall show the commodity housing, commercial housing to the housing people purchase the relevant documents and commercial housing sales orders ", both sides formed a formal agency to agency authority, clear the specific matters (including what matters) and, at the same time the need to the defendant to provide formal authorization to the plaintiff. But so far, the defendant to the plaintiff issued without authorization.
  (two) intention contracts do not determine the formal marketing agency relationship.
  first, intention contracts is the appointment contract. First of all, the name of the contract is a letter of intent; secondly, the last sentence clearly LOI terms is agreement of intent (this sentence: "on the basis of equality and mutual substitution the intention agreement"); third, the contract clearly agreed "in third signed a formal contract, Party B shall do the following work", the article shows that the two sides have made clear the intention is to make an appointment contract nature of the contract, and only in a formal contract after the two sides before the formation of the agency relationship. Finally, both sides agreed to make it clear in the contract book, agent related subject, the benchmark price, period are in after the signing of the contract confirmation. Therefore, may not be the intention of contract as the agency contract formal marketing of both sides, and mistakenly believe that both sides forming agent. On the contrary, the parties in the contract just identified the future by the marketing agency contract formal appointment. The appointment is agreed in the contract, a contract, after the performance of an appointment contract for this covenant (contract), if meet the agreed conditions and not to enter into this agreement, the party in breach shall bear the liability for breach of contract. That is to say, a legal significance of reservation between the parties concerned only, make this about under certain condition.
  because of intention contracts are on both sides of the appointment, the appointment contract terms (i.e., the rights and obligations of the parties and the liability for breach of contract) just as the two sides will sign a formal contract basis, these terms only can be incorporated into a formal contract, it can be determined the relationship of rights and obligations for both sides.
  second, intention at the conclusion of the contract the defendant is not the plaintiff said silicate Factory land use rights, the right to use the land was later accused and Chengdu Xinhui Feng company jointly made (see land permits); more importantly, the plaintiff housing referred to in the second half of 2008, it achieved sales permits, according to the provisions of the real estate management law, commercial housing can only in sales, after a pre-sale permit therefore, in the signing of the contract object does not exist, because of the lack of subject matter, both sides of the agency contract is not established, the contract is not established, both sides could not form the agency relationship.
  third, contract also does not have the necessary terms formal agency contract shall have. (1) did not identify the agency contract sign intent contract (i.e. the real name, size, etc.) that is not explicitly authorized content, lack of clause subject; (2) there is no clear agreement on schedule and sales cycle, the lack of a way to fulfill the terms of contracts; (3) in base fifth agreed not clearly, namely lack of contract payment terms; (4) the contract period and the end of the period beginning no clear agreement, the contract performance period is short terms. Therefore, the intention of contract is not formal marketing agency contract, but should be between the plaintiff and the defendant appointment contract, both sides has not formed the agency relationship.
  (three) the plaintiff and defendant fails to pass the behavior of agent relation in fact.
  according to contract law the thirty-sixth regulation: the parties in writing of the contract without a, only when one party has performed its main obligation and the other party to accept, the contract can be established. But in this case, the plaintiff did not perform its main obligations, and the defendant did not receive any work and use the.
  first, the defendant to sales. According to the general principles of civil law and contract law, principal-agent relationship is legal relationship with a high degree of trust and identity, authorization is a unilateral legal act, the behavior of the agent is to be serving the interests of the agent, the agency grant or not and the scope of authorization are decided by the principal, and the principal may, at any time remove entrust. The agent entrusted to exercise the power of agency must have a clear authorization, and in the authorization list the authority, but so far, the defendant is not authorized orders issued by authorized the plaintiff accused the development of commercial housing sales, contrary to the plaintiff, the defendant is the sale of commercial housing to the. The plaintiff in the lawsuit also confessed defendant in closing time by the sale of property. Thus, the defendant does not authorize the agent of its commercial housing sales, both is not a principal-agent relationship between the formal;
  second, the plaintiff did not do any work for the defendant, the defendant and the plaintiff did not receive any use of labor. Firstly, according to the intention of contract clause eighth, any material handing over both sides shall be signed, the plaintiff and the defendant did not have any file transfer and signed, the defendant had not received the plaintiff to the defendant to submit the so-called marketing planning manual. Secondly, from the plaintiff to provide evidence of eighty-sixth, 88, 104, 108, 113, 114, 116, 126, 133 pages to see, the work is for the Vanke "ginkgo Fang"; from 247th to 249 pages, 253rd pages, 254th pages, 280th to 285 pages and 409th to the 419 page see the plaintiff, the work is for the rising real estate "forest Lin" production, and the project name is "AAWK". Therefore, the plaintiff and the defendant did not to do any work. Third, according to the intention of contract clause third, the plaintiff should be signed after the work in the formal contract, according to the "contract law" provisions of article thirty-sixth (this article: laws, administrative regulations or the parties conclude a contract in written form, the parties do not use the written form, but one party has performed its main obligation, the other party to accept, the contract is formed.) The two sides formally signed in the contract, both parties shall not form a relationship of rights and obligations, the plaintiff made any work is no significance to the defendant (i.e. not perform on the defendant's obligation), unless the defendant received approval, and to use the results, the two sides could form a relationship of rights and obligations. At the same time, the burden of proof of plaintiff's design is the core of the concept of "river Ju" (the plaintiff evidence 273rd pages), but in fact, the development of "AAWK" is not Kanawha, but the defendant has been the dominant is the core concept of "appreciation of space", therefore, the defendant does not have any work using the plaintiff.
  in summary, both sides has not formed the agency relationship in fact.
  two, marketing intention contracts does not preclude the defendant to sales.
  make agreement on marketing intention contracts commissioned sales of the only case, namely in the determined to entrust the sales situation, should be subject to the contract book binding, in the self marketing circumstances, is not subject to the constraints. At the same time, "City real estate management law", "City real estate development and management regulations" and other laws and administrative regulations and no provisions of the real estate development enterprises must be home by sales agents and may not sell, and according to the provisions of the construction administrative department of Sichuan Province, real estate development enterprises can sell. While the evidence, the defendant is the sale of housing itself, therefore, the defendant sell not covered by the contract, the defendant to sales is not breach of contract.
  three, the defendant did not breach, should not bear the liability for breach of contract.
  (a) the defendant to sales is not breach of contract.
  although agreed contract, grant the plaintiff agreed by the Commission in the "within the term of agency accused sell" should also be. According to the article, the premise to exclude sell themselves right is "within the term of agency", but in this case, because the plaintiff and the defendant does not form a principal-agent relationship, and the two sides did not in the contract book of the start and termination of agency regulations, therefore, the sale is not in violation of the provisions of the one, therefore the defendant should not bear the liability for breach of contract.
  (two) the defendant does not conform to the contract the first paragraph of article seventh elements on the breach of the agreement.
One of the first, the first paragraph of article seventh: "both parties shall strictly abide by the contract, it shall not be changed without authorization. If any party in violation of the provisions of this contract within the term of agency or termination of a contract...... Default direction, his visit to pay 2000000 yuan as a default payment......". This article is agreed default elements "within the term of agency", "breach of contract or termination of a contract", but in the contract and no proxy deadline starting and ending points and determine the term of agency way to make an agreement, and because the plaintiff and the defendant has not formed a formal principal-agent relationship, the term of agency at no, there is no the breach within the term of agency entrusted by the unilateral termination claim, the defendant does not exist in violation of "contract book" breach of contract.
  second nature, intention contracts is that both sides of the reservation, the relevant clause in the contract is signed a formal contract reference contract basis, its only be incorporated into a formal contract, it can be identified as the two parties of the contract breach the contract basis. Therefore, the first paragraph of article seventh of the contract has meaning only in a formal contract, both sides should be incorporated into a formal contract, then, can the defendant in default, into the formal contract, shall not be regarded as breach of contract according to the defendant.
  (three) shall be based on intention contracts article seventh second asked the defendant to pay default payments.
  intention contracts article seventh second means, both sides in the making (Executive) have not agreed on behavioral intention in the contract (item) with each other before, should advance written confirmation, or breach of contract. In this case, both sides did not for some act should make a dispute, the defendant did not make agreement of intent on a no such behavior, and the plaintiff has no evidence to prove that the defendant beyond the scope of the agreement for behavior. Therefore, not on the basis of intention contracts article seventh second asked the defendant to pay default payments.
  (four) not to the two sides did not sign formal contract and agency relationship marketing agency asked the defendant to pay default payments.
  1, should not be to the two sides have not signed a formal contract defendant breach.
  first, intention contracts did not fulfill the conditions and possible. Intention contracts as the two sides signed a formal contract based marketing agency, but intentions are not specified in the contract negotiations and signed a formal sales contract time and other conditions, both sides will not contract negotiate and sign, therefore, the marketing agent of intent not to fulfill the conditions and possible.
  second, intention contracts for the defendant without setting must be active consultations with the plaintiff and must be signed a formal contract obligations. The negotiation is the behavior, need to collaborate to both sides, although the contract was signed and confirmed the signing of the formal contract to the future, but the intention contracts without giving defendants must be active consultations with the plaintiff and the signing of the formal agency contract obligations. And, no specific provisions of the formal contract contract book (base price, term, compensation, privileges, such as the scope of work) to be clear, these terms must be through consultation to determine the down. But the contract did not make clear provisions on both sides to negotiate. Therefore, the defendant has not wrongly active consultation obligations and breach of contract.
  2, should not be to the defendant the plaintiff defendant unauthorized agency contract.
  principal-agent relationship is with a high degree of trust and personal legal relationship, delegation is a unilateral legal act, the behavior of the agent is to be serving the interests of the agent, the agency grant or not and the full range of commissioned by the people. On the one hand, the law does not force a defendant to the plaintiff agency grant provisions; on the other hand, the parties have not formal agency contract must be awarded to the plaintiff defendant agency, therefore, the defendant did not grant the agency contract obligation. Therefore, should not be to the defendant the plaintiff defendant unauthorized agency contract.
  3, the plaintiff because the two sides did not sign formal contract and agency relationship marketing agency asked the defendant to pay default payments without contracts and the legal basis.
  ten thousand steps back, even if the defendant and the plaintiff signed a formal contract and does not entrust the plaintiff constitute a breach of contract (this assumption does not indicate that the defendant admits constitutes a breach of contract), the plaintiff 2000000 yuan for breach of contract is not the contract and the legal basis. First, the contract did not agree with the plaintiff signed a formal contract and does not grant the plaintiff agency liability for breach of contract and breach of contract damages calculation. The 2000000 yuan default payment no basis. Secondly, according to the law of contract 107th (this rule: if a party fails to perform the contract or its performance of the contractual obligations is not in conformity with the agreement, shall be liable to continue to perform its obligations, to take remedial measures or compensate for the losses and liability for breach of contract.) And 114th (this rule: the parties contract may agree that one party shall according to the default to the other party to pay a certain amount of liquidated damages, can be agreed for the calculation. Contract damages.) The provisions of the law, and no liquidated damages provisions and the calculation mode of legal, only the provisions of the parties can be liquidated damages and the calculation mode. In the absence of liquidated damages for breach of contract case, the plaintiff in the case can only request for compensation for the loss. But in this case, the plaintiff's work is for the rise and Vanke, any of its work did not submit the defendant, did not get the recognition and the use, loss and accused the recruitment of staff costs and to pay the advertising fee occurred irrespective of the. And its loss of about 10000000 yuan, is the actual sales calculation for the hypothesis of acquirable interest loss. But the assumptions and claims that cannot be established. The reason is that, the plaintiff and the defendant has not formed the agency relationship, since no agency relationship, the plaintiff did not participate in the potential and opportunities for sales agent, then he will have no chance to gain interest in the sales, so the plaintiff's claim because there is no prerequisite and not stand. Therefore, the plaintiff did not lose.
  in addition, the plaintiff's claim is "to order the defendant to the plaintiff according to the contract agreed to pay 2000000 yuan default payment", instead of "compensation", according to the principle of no trial without complaint, the court may order the defendant to compensate the plaintiff loss.
  four, should the defendant bear the liability for breach of contract breach of contract law and the principle of reciprocity of rights and obligations and the principle of fairness.
  first, should the defendant bear the liability for breach of contract breach of contract law on the principal-agent relationship between the legislative purpose.
  to Article 401 of the relevant agency regulations according to the law of contract 396th and analysis of the principal-agent relationship of rights and obligations between the agency relationship, the agent itself, the trustee shall serve the interests of clients, the trustee is the duty, commissioned by the talent is the object right and the legislation on protection. Therefore, should be more emphasis on proxy trustee s duty is what, whether to perform and whether well perform their fiduciary duty, but not to the client's authorization as a kind of responsibility and identify the default reason. In this case, the plaintiff mistakenly think, the defendant shall be granted the right to his sales agent, if not given, then the default; at the same time, the plaintiff had mistakenly think, the defendant has the authority granted him (in fact does not grant), in obtaining authorization, even in the absence of any work done (in fact the plaintiff nor do any work), the self marketing is default. The above mistake, in clear violation of contract law principles of legislation about principal-agent relationship.
  second, should bear the liability for breach of contract in violation of the principle of reciprocity of rights and obligations and the principle of fairness.
  in this case, the plaintiff claims agent relationship has been formed between it and the defendant, if the proposition (the assumption does not represent the defendant recognized both sides has been formed, then the agent relationship), according to the principle of equal rights and obligations, the plaintiff shall assume the agent for the sale of housing related obligations, such obligations including but not limited to: advertising design, develop and implement marketing plan, formulate and implement the sales plan, organizing the conference stage, the activities of the organization, customer reception, negotiate with customers, and customers to sign the contract, mortgage, overdue receivables and will report the work to the defendant etc.. From the facts of the case and from the plaintiff to provide evidence, the plaintiff will be spent and rising production of tender documents as proof of the evidence submitted work to the defendant, the defendant from first to last are not engaged in real estate development, marketing planning and sales. Moreover, the defendant to the sales process, also did not have to use any of the work results. That is to say, even if both sides has formed the agency relationship, the plaintiff in the formation of the agency relationship, and did not perform as a trustee shall perform obligations, which do not fulfill their obligations act has constituted a fundamental breach of contract, according to the law, it shall bear the liability for breach of contract. In contrast, the plaintiff was not fulfill their obligations under the condition also asked the defendant to pay 2000000 yuan, this is simply the wicked to complain, and this also violates the principle of reciprocity of rights and obligations and extremely unfair.
  in summary, contract is the plaintiff and defendant to prepare for the future by the formal contract appointment from first to last, not between the original defendant form principal-agent relationship, the defendant did not breach of contract, the parties have not signed a formal contract and agency relationship marketing agency formed no breach of contract. The plaintiff's claim shall be dismissed in accordance with the law and take the case of litigation costs.
  sincerely
Qingyang District People's Court of Chengdu City  
  Sichuan WK Residential Development Company Limited
  agent: Zheng Shuhong Lu Yu
  March 3, 2010
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