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《中华人民共和国拍卖法》是1995年12月由当时的国家贸易部提请全国人大审议,1996年7月5号通过,并于1997年1月1号实施的,至今已过去16年。当时直接参与起草《拍卖法》的人员大多数已退休或离开拍卖行业,我作为直接参与《拍卖法》起草的工作人员,今天回顾一下关于瑕疵担保责任规定的来源,以及我对这个制度的理解。瑕疵担保责任是《拍卖法》中很重要的内容,但是近年来很多人对这个观点发出质疑,还有人大代表在两会上提出修改《拍卖法》有关瑕疵担保责任的意见。《拍卖法》61条第二款中规定,“拍卖人、委托人在拍卖前声明不能保证拍卖标的真伪或者品质的,不承担瑕疵担保责任。”《拍卖法》之所以对拍卖企业免除瑕疵担保责任做出规定,主要考虑到拍卖标的物的特殊性:一类是艺术品,一类是公物。有的文物就连鉴定人员都各执一词,拍卖企业很难辨别真伪,要求执法机关鉴定真伪也有难度。为了保证竞买人利益,《拍卖法》规定拍卖企业应当依法对拍卖标的物做出公告和展示,以使购买人有足够的时间了解。当时考虑对于保值和不保值拍卖,成交价有所差别,会直
The Auction Law of the People’s Republic of China was submitted to the National People’s Congress for consideration in December 1995 by the then Ministry of Trade and Industry. It passed 16 July 1996 and was implemented on January 1, 1997, and has lasted 16 years. Most of those who were directly involved in the drafting of the Auction Law at the time were mostly retired or left the auction industry. As a staff drafted directly involved in the Auction Law, I recall today the source of the provisions on liability for warranty defects and my understanding of the system . Flaw guarantee responsibility is an important part of the Auction Law. However, many people have questioned this view in recent years. NPC and NPC deputies have also proposed to amend the auction law’s liability for defects in the two sessions. Article 61 of the “Auction Law” stipulates that “the auctioneer and the client declare before the auction can not guarantee the authenticity or quality of the auction target, and shall not assume the liability for guarantee of defects.” The “Auction Law” Exemption from the warranty liability guarantee provisions, mainly taking into account the particularities of auction objects: one is the art, one is the public property. Some cultural relics, even the identification of staff are all coined, the auction business is very difficult to distinguish the authenticity of the law enforcement agencies require the identification of authenticity is also difficult. In order to ensure the interests of bidders, the “Auction Law” stipulates that an auction enterprise shall make an announcement and display of the subject matter of the auction according to law, so that the purchaser has enough time to understand. Considered at the time for the preservation and non-preservation of the auction, the transaction price difference, will be straight