Core clew: "Buy a holiday to obtain compensate " such common sense, the market is collected to be able to won't do in antique. "Go out not to admit, punch a hole not compensate " the guild regulations that becomes antique to collect a bound already. Notable is, so distinctive trade the habit also is approbated by forensic place, become one of basises that its adjudicate. 
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" democracy and legal times " report of Beijing of Zhuang Detong of reporter of learn on job
Antique collects the market, spend money like water. As people life character rise, more and more people begin to enter this group line of business " pan " . Nevertheless, because trade market good and evil people mixed up, tibet tastes difficult differentiate of true also bogus, no matter be senior collector, just still join the new hand of travel, can clean out some of counterfeit, say inside course of study for " punch a hole " .
So after buying counterfeit, can you ask to retreat goods refund?
Lanzhou manage is versed in Mu Yongjiang of director of institute of law of bequest of culture of university law courtyard's associate professor expresses: Antique trades in evolving for a long time, formed a few guild regulations, among them with " do not protect true " provide most representative. "Do not protect true " it is to point to, after buying the home to buy antique by its judgement, cannot again in order to buy false or buy a fault for and requirement bargainor returns money.
Be not being protected is folk collects a bound to trade really habit
"The principle that trades inside antique industry is: Gave the door, do not admit basically. " senior collect group public figure to say. He expresses, because trade the disorder of the market, even firm end of buyers and sellers trades, the thing is likely by " tone is wrapped " . Although go out,show counterfeit so, if trade,the both sides in the process is approbated severally, still signed certify to, won't return commonly.
In fact, basis before forensic legal precedent, the court decision also respects this mostly as a result one " habit " .
End came in May 2010 in December, wang Gang bought enamel colour flying wild goose to hold Lu Wen to Li Kun early or late avalokitesvara bottle, asperse orchid glair to admire all directions of bottle, green glair to wash wait for 17 " antique " (among them Yu Chan is Li Kun be given) , clinch a deal price totals 1.28 million. On December 13, 2010, wang Gang is in those who carry bright the name of an article, amount, monovalent, amount to be 1.28 million yuan to fly the chamberlain inside wild goose expense account signs on one column.
On May 27, 2010, on November 16, 2011, li Kun parts the written data that issued 12 to its sign, carry bright each " antique " time, provenance.
May 2012, wang Gang general these " antique " the friend that takes know the business looks, the friend says is contemporary copy is tasted, hind he divides these 17 antique again second send Yunnan appraisal of committee of appraisal of province cultural relic, appraisal result makes clear, these 17 " antique " all belong to contemporary copy to taste, without cultural relic value.
Subsequently, wang Gang appeals to Li Kun to Kunming city court of people of 5 China divisions, the requirement is sentenced make remove former on fact of two human affairs " antique " business contract concerns, ask Li Kun is returned return 1.28 million yuan of payment for goods and pay interest.
The court thinks when hearing this case, in this case, although both sides of former, the accused did not sign written business contract, but contract of real business of bilateral form accomplish sth concerns, this business contract fastens bilateral and true meaning to express, contract content also does not violate state law regulation, it is lawful and active contract, both sides all fulfilled respective obligation, business contract has been fulfilled end.
In addition, according to collecting a bound trade habit, right when antique trades trade the true bogus of article, betray a person to be not protected true. All be level of the eyesight that depends on him vendee, knowledge to the identifying of antique go judging true bogus, time, antique trades is the knowledge, argue of aesthetic, experience, wisdom, whether buy so that taste really, complete by the appreciate capacity that buys the home. In this case, although the accused issued 12 written data to accuser, but look from the content of account of these 12 written material, it is to originate in to some antique only in material why time made a characterization, 17 when make both sides clearly trade to accuser without the accused " antique " all fasten what taste really to keep true commitment, accuser also proves without other evidence the accused is aimed at experience case article to had been made to accuser keep true commitment.
And the content of the mark of this business contract has both sides of former, the accused characteristic, have the antique that collects value namely. According to antique course of study inside trade habit, skill of kinds or types of goods is not retreated do not change, buy the home to buy counterfeit to belong to " punch a hole " , cannot ask to sell the home to protect true. Accordingly, the end that cannot buy authentic work with cannot realizing accuser is negative between both sides the effectiveness of business contract. Courts of 5 China division people rejected entire lawsuit of Wang Gang to request.
In December 2014, wang Gang reachs Kunming city with respect to this matter appeal intermediate people court.
2 careful court thinks, above all, appellee serves as sell a person, having main allegation and introduction to the content of mark is manage place ought to, if be to keep true commitment, unless buyers and sellers will protect true acceptance clearly to undertake conventional as contract content, right of the contract conclude the effect that produces substance. And the matter that agree or assures mark what the bilateral antique deal in this case did not sign written contract to had undertaken making clear character to the article of mark is to be tasted really, reason is reached by these 12 written material only detect report photocopy cannot be maintained be opposite for appellee trade of the content of mark keep true commitment; Next, in light of the price that trades actually from both sides, trade according to common market prices, the content that is like the mark that this case deals all is to be tasted really, market price case is head and shoulders above the price that both sides trades actually, appellant all ought to arrive to this when trade sufficient understanding and attention are compulsory, and to buying antique be opposite in the process of this one special article implicit interest and risk should undertake sufficient beforehand appraise and judge, reason appellant desire beyond is far the deed that buys antique to be tasted really under the price of market price case is in subjective on should maintain its to be opposite the content of bought mark is true bogus has given sufficient foreknowing.
Because the content of mark of appellee counterproposal experience had not been made,keep true commitment, the appraisal opinion that antique of experience of counterproposal of committee of appraisal of expert of reason Yunnan province makes does not affect the processing result of this case, the court does not grant to try affirm. Final this case out of court appeals, maintain original judgement.
Auction firm also can be not protected true
The basis is active " People's Republic of China auctions a law " relevant provision, the flaw that auctioneer, client ought to show those who auction mark, if give vendee to cause because of explaining,damage, vendee has right to auctioneer seek redress; Attribute client responsibility, auctioneer has authority to chase after countervail to client.
But, " People's Republic of China auctions a law " the 61st the 2nd specific also provision: Auctioneer, client states before the auction of unwarrantable auction bid true bogus or of character, do not assume a flaw to assure responsibility.
That is to say, if unwarrantable sale had had before auctioneer, client of mark true bogus or the statement of character, also need not be opposite auction mark protect true.
On March 20, 2010, firm of Guangzhou some auction (take a selling party) with Pan Jiang (client) signed entrust sale contract, conventional client entrusts an auction to just auction work of painting and calligraphy, just assure what Pan Jiang auctions mark to the auction: Oneself are opposite of an on sale mark own absolutely property or enjoy legal punish authority, to auctioning mark auction also won't enroach on the legitimate rights and interests of any tripartite, also do not violate the regulation of relevant law, code; Oneself already used up its place to know, the origin that tastes with respect to this auction and flaw just undertake comprehensive, detailed exposure and specification to the auction, any nonexistent concealing and be in dummily; If disobey afore-mentioned assurance, cause an auction to just cheat damage miss the opportunity, client should be in charge of compensation auctioning all losses that just suffer accordingly, assume all cost that produce accordingly and defray.
In commending work of on sale painting and calligraphy, having is Li Feng " apricot spends Changjiang Delta of rain during springtime " . After the contract is signed, pan Jiang to this company delivery " Changjiang Delta of apricot beautiful rain during springtime " of work original, Li Feng child Li Cheng issue " testimonial " reach Li Cheng to hold this " testimonial " photograph. When auction firm and Pan river sign sale contract, pan river exposure entrusts on sale " Changjiang Delta of apricot beautiful rain during springtime " department Wang Kai is all, be its 2010 around from Beijing sea king? Buy earning, what the testimonial of work itself, Li Cheng reachs its and work include to close when be being bought according to.
On June 16, 2010, firm of Guangzhou some auction entrusts Pan Jiang, Wang Kai on sale " Changjiang Delta of apricot beautiful rain during springtime " undertake auctioning, this work by Guangzhou some estate company is gotten with contest of 3.6 million price.
On May 10, 2013, company of Guangzhou some estate is given out " the requisition that return money " , think its contest takes gain " apricot spends Changjiang Delta of rain during springtime " it is counterfeit. Because company of vendee Guangzhou some estate is its VIP client,this auction firm shows, to uphold bilateral interest and right, both sides was signed reach the agreement that deduct a money, the means that agrees this auction firm is buckled with touching returns vendee to auction " Changjiang Delta of apricot beautiful rain during springtime " the auction money of earning and commission, aggregate 4.032 million yuan.
Subsequently, this auction firm appeals to Pan Jiang, Wang Kai to to Guangzhou city jumps over court of beautiful division people, ask two people recoup its pecuniary loss 3.6 million yuan.
First trial court is found out, on May 28, 2013, this auction firm ever reported a case to the security authorities to Guangzhou city public security bureau, but Guangzhou city public security bureau not at this point put on record is investigated. First trial court investigated detachment attune to take to economy of Guangzhou city public security bureau " the inquiry notes " and " appraisal opinion book " . Among them " appraisal opinion book " investigation detachment of economy of public security bureau of indication Guangzhou city sends check " Changjiang Delta of apricot Hua Chunyu " either Li Feng's authentic work; Basis " the inquiry notes " the content of account, li Feng and Li Cheng fasten filiation, li Cheng is done not have " Changjiang Delta of apricot beautiful rain during springtime " had issued " testimonial " , also have not holds this " testimonial " had undertaken group photo.
Court of first instance thinks, this company entrusts sale contract with what Pan Jiang signs is true meaning expresses both sides, what content does not have lawbreaking, administrative regulations is mandatory regulation, should be lawful and effective. In this case, pan Jiang and king Kai fulfilled the origin that in auctioning a contract, tastes with respect to the auction to have demonstrative obligation to auction firm. This auction firm also proves Pan Jiang, Wang Kai to know perfectly well or ought to know an auction to taste existence flaw before the auction without evidence, and the auction clinchs a deal to be sued to this case too old already, the work that Pan Jiang, Wang Kai also does not define to auction firm is shown on the court is drawn to entrust on sale at the outset namely, reason auctions a company to cannot confirm two people existence conceals an auction to taste the behavior of break a contact of the flaw.
Additional, the basis auctions regular and relevant provision, firm of Guangzhou some auction serves as the attorney of Pan Jiang, Wang Kai, its do not assume a flaw to assure to auctioning tasted true bogus and character responsibility. According to afore-mentioned regulations, and the characteristic of artwork itself, the flaw that this company does not assume an auction to taste assures responsibility, to say the least, although auction tasted true bogus and quality presence issue, this company is beardless also refund. This company stems from hold together its and the consideration that VIP client concerns, not was opposite " Changjiang Delta of apricot beautiful rain during springtime " have identification, below the condition that have not notices Pan Jiang, Wang Kai is present, home remedy auctions 3.6 million yuan the paragraph to return vendee, have be contrary to to often manage.
Forensic cognizance thinks, the pecuniary loss that this auction firm asks because refund place is caused,Pan Jiang, Wang Kai compensates for his jointly 3.6 million yuan, lack factual basis and legal basis, and already exceeded litigant effectiveness for a given period of time, rejected the litigant request of firm of Guangzhou some auction.
Subsequently, this auction company raises to court of Guangzhou city intermediate people appeal.
2 careful court thinks, firm of Guangzhou some auction proves without evidence king Kai existence violates conventional obligation or the law defines the conduct of Wu. This auction firm to Guangzhou return of some estate company auctions a paragraph 3.6 million yuan, be not obligation of Wang Kai breach of contract or legal obligation to give this company the loss that cause, 2 careful court maintains original judgement finally.
Because purchase fake false but claim for compensation
In judicatory practice, the appraisal of antique true bogus, also be one of this kind of core problems in trading. Mu Yongjiang expresses, current, although the country is authoritative committee of cultural relic appraisal, but average auction company, collect an orgnaization to wait a moment, also can have identification and issue calibration certificate, do not have authority nevertheless.
In addition, greatly, the true bogus of antique still depends on the opinion of appraisal expert, the controversy that generates from this is commonner also. One collects group public figure to express, he ever encountered this kind of situation for many times: Same a thing, the government relatively admissive appraisal orgnaization, appeared different appraisal result.
Mu Yongjiang also expresses, "Do not protect true " guild regulations, because of its content and active law are put in conflict, got more and more doubt. Antique trades is conduct of a kind of business, want to be restrained by the relevant law such as civil code. In business course, if operator is subjective,go up put in fraudulent action, provide false statement, bring about vendee to be immersed in wrong understanding, purchased fake, suffer pecuniary loss, for the honest credence principle that buys a person to disobey our country civilly in order to trade possibly and fair principle, to forensic to lodge a complaint, perhaps ask to retreat goods refund to buyer claim for compensation.
Mu Yongjiang suggests, to antique collector, before trade, should become good antique legal hazard trades related appraisal, understanding, find out the antique that buys the home to trade to place to whether have the job such as complete ownership, make clear the right obligation of buyers and sellers and responsibility, make a decision cautiously. Additional, if want to sign business contract, had better ask professional law personage to undertake guarding a pass to contract provision. (the person that the case in article involves all is alias) original title " it is difficult to buy counterfeit refund, antique trades careful prevent " punch a hole " "
