民法典中介合同的变革与理解——以委托合同与中介合同的参照适用关系为切入点

《民法典》中介合同章较之《合同法》居间合同章,增加了两个关键性的条文,并修改了个别条文的表述。中介合同参照适用委托合同规则的导入及其解读,与中介合同和委托合同内在关系定位密切相关。中介合同有别于委托合同,委托合同的规定并非全部可以"参照适用",应当根据中介合同的性质逐一分析判断。中介合同"禁止跳单"规则的导入,会与委托合同任意解除权制度的参照适用发生交错,面临报酬请求权构成抑或损害赔偿请求权构成之争。但即使可以参照适用委托合同任意解除,任意解除中介合同时可以肯定报酬请求权的,也仅仅限于构成"跳单"的情形,而不是所有的情形。

Understanding the Changes for the Intermediary Contract in the Civil Code of China

Compared with the provisions in the corresponding chapter in the contract law, two key articles are added in the chapter of intermediary contracts in the Civil Code, in addition to some changes in expression for some articles. The inclusion of the article that "the relevant provisions on entrustment contract shall be applied mutatis mutandis" and its interpretation are closely related to the internal relationship between the intermediary contract and the entrustment contract. However, since intermediary contracts are different from entrustment contracts, not all the provisions of the latter can be applied, which should be analyzed and judged one by one according to the nature of former. For instance, the law of the former provides that the client shall not bypass the middleman in concluding a contract, which may conflict with the provision in the law of the latter which allow the principal or the agent to rescind the entrustment contract at any time. Thus, if the relevant provision in the entrustment contract law is applied analogically, then the dispute may arise over the claim for remuneration or for compensation. Therefore, only in the case of "bypassing" can the claim for remuneration be confirmed in the rescission of the intermediary contract.