A Research On The Essential Issue Of Property Services Management Contract

Property industry started late in China, but it has got a rapid development with the quick development of the real estate economics in China. However, the legislation of property contract in China is relatively later than other countries and there are lots of disputes appearing during the carrying out of property contract, and the legal grounds for many new issues and new disputes cannot be found and there is not a unified standard for the dealing of many disputes which means that there are different viewpoints towards the same issue which will consequently bring about different processing results for the same issue. On the base of the research on the essential issue of property contract, some detailed legal thoughts have been put forward for the improvement of the legislation of property management in China.There are five parts based on the structure of the thesis:Part-1 is the definition of property management and the attribute of property contract. That what is property, what is property management and what is property contract are all presented hereunder and an analysis on the property management relationship and the attribute of property contract is also made hereunder in this part. The concept of property has experienced a series of evolvements in authority files. In consideration of the current development of property industry now and the possible upcoming development of property industry in the coming period, property shall be defined with a moderate measurement as that all kinds of buildings (structures) and their auxiliary facilities and equipments and the relevant places and sites approved to be invested in the construction and completed and reaching the acceptable quality level. Different scholars have different definitions about property management. Property management is engaging in many aspects and the content and aspects concerning property management will be much more complex and diversified with the continual development of property industry. The concept of property management shall be defined in the broadest category. A property contract is an agreement made and entered into between the property services enterprise and the development and construction unit, or owners or owners meeting or owner's committee, in which it is ruled that property services shall be offered by the property services enterprise and the owners who get the supplied services shall make a corresponding payment to the property services enterprise. Property contract neither belongs to contract of mandate nor belongs to agency contract, but a new type of contract which shall belong to the unnamed contract subject to the categories of contracts classified pursuant to Contract Law of the People's Republic of China and shall be applicable to the general of Contract Law of the People's Republic of China. Part-2 is about the main body of property contract and its eligibility. The components of the main body of each party belonging to the property contract are put forward and the research and statement on the eligibility and proceeding capacity of owners meeting and owner's committee of the main body of property contract are carried out too.In a property contract, the main body of one party is the property services enterprise and the main body of the other party is the owners, or the owners meeting or the owners'committee or the development and construction unit. As the people of condominium ownership of building, owners have the right to manage their properties including choosing a property services enterprise to make a property contract. However, only when the number of all the owners is small, the possibility that owners are the main body of one party to sign a property contract is operable in practice; while when the number of owners is large, each of the owners signs a property contract with the property services enterprise is hardly operable which leads the establishment of owners meeting and owners'committee. Owners'committee carries out the resolutions passed by owners meeting and executes all the responsibilities offered by owners meeting and is the executive organization of owners meeting. From the aspect of research on legal principles and the need of practice, owners meeting shall be considered as a special type of main body with part of legal capacity and be defined its eligibility within the limit of property management activities. Owners'committee is the executor or representative of such said special main body and is entitled to part of the eligibility of the main body within the limit of the eligibility of the main body of owners meeting. Owners meeting and owners'committee shall have the right for actions within the limit of property management activities.Part-3 is about the source and characters of the right of property management. The concept of the right of property management is put forward, and the content and oblige of such right are also pointed out, and the source and characters of such right are stated.Condominium ownership of building is combined by exclusive ownership, common ownership and member ownership. Property management is substantially the management of condominium of building and the management of condominium of building is just the property management. The development of property management promotes the establishment of the condominium ownership system of building, while the establishment of condominium ownership system of building constructs the theory system and legal ground for the property management which further forms the modern property management system. However, the modern property management system is a necessary component or a necessary result of condominium ownership system of building, and they are accompanied by each other and indispensible to each other. The condominium ownership of building divides the building into the part for self use and the part for common use and divides the right of owners into exclusive ownership and common ownership. The property management right of owners is the use right of their ownership which is a right to use the owners'exclusive properties and common properties as a result of their exclusive ownership and common ownership. Condominium ownership of building is the source of property management right. The obligees of property management right are the people of condominium ownership of building, i.e. the owners. The property management right of owners substantially divides all the gained on the base of buildings, and is part of the powers and functions of the components of condominium ownership of building and belongs to the real right. However, the property management right of property services enterprise comes from the property contract, of which the background determines the property management right of the property services enterprise belongs to obligatory right, and the property services enterprise is not the obligee of the right of property management but only the trustor when the obligee of the right of property management-the owners transfer the mandatory management to them.Part-4 is about the carrying out of property contract. An analysis and statement of the issues coming up during the carrying out of property contract and the argumentations on the issues of performing the right of defense, adjustment of breach penalty, the undertaking of a third party's tort and discharging of the contract are given.A property contract belongs to bilateral contracts; the obligations of both parties shall be carried out at the same time and one of them shall have the right to implement the right of defense in the meantime. However, for the reason that the main body of one party in the property contract represents all the owners, the property services enterprise could implement the right of defense in the meantime only if most owners can not pay property services charge under the property contract, or the interests of many other owners who have paid the property services charge would be damaged. According to the principle of justice and equity, when the liquidated damages by agreement of the two parties are too high, the judge may make an appropriate adjustment for it. Of course, such adjustment shall be made appropriately when one party voluntarily applies for an adjustment or when one party applies for an adjustment after the judge implements the interpretation right. Under the circumstance of the tort towards owners by a third party, whether or not the property services enterprise shall be liable for it should be determined in accordance with the concrete content and the proportioning of charging standard and risk taking of the property contract. If it is agreed that the designated belongings shall be safeguarded or the residential security precautions shall be done well, which includes but not limited to safety supervising, public security patrol, guarding, performing guard duty, etc. or clauses analogous, and with a high-grade property services charge, the property services enterprise shall be considered to be obliged to safeguard the exclusive property of the owners. With respect to the discharging of property contract, owners meeting has the right of rescission at all times through legal procedures and owners'committee has the right of claim, meanwhile, owners meeting or owners'committee also has the right of arranged termination established according to the property contract arrangements.Part-5 is about the current situation, deficiencies and improvement thoughts of the legislation of property management. The current situation of legislation of property contract in China is stated, the deficiencies of legislation of property contract in China are pointed out and the improvement thoughts for the issues existing are put forward hereunder.The legislation of property management in China is relatively backward with some deficiencies, the current property management regulations should be improved and the property contract should be considered as a new type of named contract and put into the Contract Law of the People's Republic of China, all of which would promote a favorable and orderly development of property management. At the same time, Property Management Law shall be begun to be made, all kinds of legal relationships concerning the process of property management shall be made clear, the main body of each party shall be standardized and the relevant standardizations shall be adjusted correspondingly which forms a coordinated and unified property management standardization, all of which makes the important legal activities vital to the people's livelihood have an accurate application of law and constructs a harmonious social life order.