On The Responsibility Of The Third Party 's Infringing Property Company

With the rapid development of commercial housing construction in China, the property service industry has become an important industry for people’s living. It plays an important role in improving the living environment, promoting social stability and improving the level of urban management. It provides basic allowances for urban residents for maintaining normal life. However, with the criminal intelligence constantly upgrading and people’s consciousness enhancing, the lawsuits are increasing quickly due to inadequate property service, which are more controversial in cases involving property company’s responsibility caused by the third party’s infringement to property owner’s personal and property rights. Judges have difficulty in judging these cases because property service industry development and related laws are not perfect, which leading to the rising of many same cases with different judgments and bringing harmless to the judicial authority. However, the relationship between the property company and the owner is actually the contract of property service. Property fees paid by the owner mostly include safeguard fees. The property company shall have corresponding security obligations for the residents. The security obligations should be different from article 37 of the tort liability act of general security responsibilities of managers in public places. The main responsibility of the property company is to provide a safe living environment, which is one of the basic obligations. The owner gains the security services by paying the safeguard fees. The property company shall be liable for breach of contract if they delay in performance of the obligation to leave opportunities for the third person infringement. Under the existing legal system in China, if the Supreme Court can introduce appropriate instructional cases, unify the scale and law applicable standard, guide local court solving cases of property companies’ responsibility involved in violations of the rights and interests of the owners by the third party under the framework of the contract law, appropriately constraint excessive expansion in tort liability law in judicial practice, which will not only do the goods to standardizing judicial practice and safeguarding judicial justice but also make clear guidance to the behavior of the property company and the owner.The paper is divided into five parts:The first part raises the problem. It goes through the introduction of the trial of the status quo of five typical cases, compared with existing in the judicial practice of many different sentence connection problems. In some places for damage to the owner of the "contract law" to determine the property company be liable for breach of contract, in some places rejected outright default lawsuit brought by owner, in some places for the tort liability law determine property company bear tort liability.The second part discusses the rising problems and reasons of the law practiced in reality. It finds the major reasons for same cases bearing different outcomes including the lack of legislation pertinence, the unregulated property service contract, the disunity of law application and justice criterion, which give reasons for the rising of discussions about the property company’s security liability, such as nature, content, category, form and law application etc.The third part is about the basic problem of property company security obligations. First, it believes property company security responsibility is determined by the social development. The property company’s primary responsibility is to provide a safe living environment for the owners, whether realty service contract agreement with security service, as long as the owners pay a security charge. The property company is responsible for the security obligations. Second, it believes that the property company is responsible for the owner’s security obligation, which is the "main obligation". Both sides are in bondage to the realty service contract and should be advocated under the framework of the contract law to solve contract dispute, and "pay" for the service and compensation must be higher than the law of "free" services and compensation. Liability for breaching of contract is not limited to demand of the sequence of tort liability can more timely and comprehensive than the compensation for the losses of the victim. Third, the safeguard object of the property company should be only subjected to the personnel who can legally entering the community. The property company has the safeguard responsibility for the property owners and people who living with the owners. The property contract can be used as a reference for dealing with the property company’s responsibility for the people who has close relationship with the owners and can legally entering the community.The fourth part is the comparison research of security responsibility. By studying the German general explanation of the development of the security obligation and the duty of care to improve our security responsibility system.The fifth part gives suggestions on improving the implementation of property management company security responsibilities. First, the property company needs release its budget and ask for the property owners’ supervision to win owner’s understanding and recognition for expensive security facilities. It also needs improvement on property management regulations to define the rights and responsibilities of two parties so that the property service industry can enjoy healthy development. Second, it needs to introduce the insurance compensation mechanism to reduce the property company’s pressure and fully protect the rights of the owner. Last, it’s better dealing with the property company’s responsibility caused by third party’s infringement under the contract law. The high court needs provide case examples to regulate judicial practice.