不動產交易斡旋金適法性之探討

不動產交易經紀業者通常要求承買人以支付所謂「斡旋金」方式，以備出賣人同意該售價時「轉為定金」之用，此乃有利於經紀業者掌握承買人之承買意願'有助於達成居間勞務。然該「斡旋金」是否得以充作為定金？又如；承買人於出賣人同意出售後卻違反承買意願，則該斡旋金如何處分？抑出賣人同意出售後卻拒絕接約如何解決？本文以現行不動產經紀業者交易制度作為探討課題，研究發現主管機關對於買賣幹旋金的法律關係（如定型化契約範本）並無明確規範，其他法律如消費者保護法、不動產經紀業管理條例等亦均未涉及幹旋金課題。是以，由各不動產經紀業者任以契約自由原則，對斡旋金做有利於己之約定，造成糾紛頻仍。為此，有必要將斡旋金作適法性規範，以維護不動產交易安全。

關鍵字

斡旋金；不動產交易；定型化契約；不動產經紀業

並列摘要

In a real estate transaction, the realtors usually would ask the buyer to pay for the so-called negotiatior fee which, once the seller agrees with the sale price, would be converted into down payment. The practice helps the realtors in securing the buyer's willingness to take the offer and close the deal as the realtors is up to. But, is it appropriate having the negotiatior fee be taken as down payment? Again, how would the negotiatior fee end up if the buyer reneges and denies to buy the estate after the buyer agrees to se 11 the property? or what if the seller refuses to sign the contract after agreeing with the sale? By discussing the transaction system practiced by real estate operators we used today, we have come to realize that the competent authorities fail to dictate specific rules for the legal relations governing negotiatior fee involved in real estate transactions (such as a finalized model contract); the same issue is not covered by other laws, such as Consumers Protection Law, Management Regulations for Real Estate Agency Operators, among others. Therefore, there have been a large number of disputes arising from negotiatior fees set by real estate agency operators in unrestricted contracts in their favor. As solution, it is necessary for legislate regulations concerning legality of negotiatior fee in order to achieving a safe real estate transaction.