This is a new provision, but also a major legislative highlights. Both the judicial practice of the rules of evidence recognized by the legislation, but also to the ancient folk customs of the legislative recognition.
In accordance with Article 32 of the Contract Law: the parties to the contract in the form of a contract, since the parties signed or sealed when the contract was established. That is to say, the written contract only needs to be signed or stamped by the parties to be established. However, for the folk old customary law tradition and urgent practical needs, the supreme people's court in the "contract law" judicial interpretation (2), article 5, the contract, should be signed or sealed, if the fingerprints instead of signing or sealing, the court shall find that it has the same legal effect as signing or sealing.
Why recognize the legal effect of fingerprinting on the contract? Because the ancient people's cultural level is not high or even will not sign, there is no private seal, handprint is the best proof of identity.
This is one reason why handprinting is popular. But more importantly, in the civil economy, social life, many things to be solemn, in addition to signing, stamping, many occasions require the parties to press the handprint. For example, today's real estate transactions, in their own name, the transaction amount, liquidated damages agreement and other core terms, are required to press the handprints of the parties; as for men and women self-agreed terms of marriage, the family's contract of separation of property, the parties are more required to sign, press the handprints.
This may seem trivial and overly cautious, but it avoids possible risks and costs. During the surge in housing prices, the husband sold the house in his name, less than half a year, the price of the house dawdled, the husband and wife a muttering, so when the wife stepped in, sued her husband without the right to dispose of their own did not agree to, the husband unilaterally disposed of the couple **** have property. Why is there a copy of your own ID and signature? Sorry, it was the husband who stole the ID and signed the name on his behalf, it doesn't count and can't have legal effect.
Since the housing reform, especially since the privatization and marketization of housing, there are more and more such lawsuits. In this way, whether it is really uninformed, or purely moral speculation, to the buyer, to the court, and even to the real estate agent, is a potential danger or burden, may be when the mine. Drag the home buyer to death, tired of the judge, but also implicate the intermediary.
So, whether the buyer, or real estate agents, have begun to return to the customary law tradition, after signing and signing and stamping, but also in the core terms and conditions, their own names below the handprint.
What is the use of handprints on the contract? From the macro level, the legal function of fingerprinting is mainly manifested in the following three aspects:
The first function, to confirm the identity, to prevent counterfeiting. Laser scanning era, signatures, seals, fingerprints fake are too easy. But in ancient times, signature, seal counterfeiting easier, but fingerprint counterfeiting is too difficult. Therefore, according to the Song dynasty law and judicial interpretation, the contract have legal format and requirements, once there is a fake hidden deception and other circumstances, all people have to bear legal responsibility, and fingerprint is the most important identity basis. Therefore, even if uneducated, can not sign, but must play mold.
The Song Dynasty was economically developed, and all kinds of counterfeiting events were endless, with a large number of day ghosts, iron drilling bugs, and flying centipedes, which made the parties unable to defend themselves, and the magistrates could do nothing about it. In a case recorded in the Song History - Yuan Jiang Biography, a widow belonged to the middle class and her family had a lot of good land. A rogue son named Long enticed the widow's son to gamble and pay water debts, asking for a mortgage on his family's good land. Overnight, the widow's family's good land was lost seven or eight times. The widow was so furious that she went to the police to seek redress. How do you know, the rogue son not only took out his son's fingerprints on the contract, the contract actually also has the widow's signature, and the widow's handprints! So, from the county to the prefecture and the state, the handprints were real, and the widow could only keep losing. Then Yuan Jiang came, and the widow sounded the dengwen drum again, beating it to cry out for justice. Yuan Jiang took the contract, looked at it left and right, and finally found the problem; there must be a demon when things go wrong, the contract was fingerprinted first, and then the text was written. In other words, the scoundrel's son had cut off the widow's handprints from her previous contracts and glued them to the forged contract. The scoundrel's son was called and asked: why was the contract fingerprinted first and then written? The scoundrel's son confessed to the crime on the spot.
The second function, the handprint represents the personal credit, can effectively prevent the disposal. Ancient people entered into important contracts, selling houses and land, including the law allows a specific sale, the buyer will be in accordance with the customary requirements of the seller's side of the adult family members of all fingerprints, to guard against its future to *** entitled person or close relatives do not know, do not agree with the reasons for the claim that the contract is invalid. For example, the Southern Song Dynasty Shaoxing ten years the court through the decree, edict form, the contract must be personally signed or fingerprinting, otherwise the contract is invalid. That is to say, on behalf of the book contract is fine, but the signing of the seal to play the mold must be my own behavior, not agent, in order to prevent a variety of circumstances and disadvantages.
The third function, as evidence of litigation, to prevent fraud. Fingerprints as biometric information, it is difficult to hide, smear. According to the Tang Dynasty, Duan Cheng style "Youyang Miscellany Chopper" records, starting from the Tang Dynasty, Jiangsu and Zhejiang areas economically developed, the hearts of the people seeking wealth, so there are some defensible means of contract fraud. Some of the generation of books people's recruitment of the bag hidden in a treasure: squid ink. Write out the contract, black on white, shiny oil, no problem on the surface, but after a few years, the paper is still there, the word is gone. At this point, the handprint becomes the only valid evidence - there is no contractual relationship, you press the handprint on the blank paper is certainly not performance art, so what is the meaning? This is not only conducive to identify the authenticity of the contract, but also conducive to the allocation of the burden of proof, to minimize the contract risk.