Research Of Liability For Breach Of Property Service Contract

In recent years,with the rapid development of property services,the number of property service disputes has been increasing year by year,and the types are becoming more and more complicated.Due to the asymmetric information between the owner and the property service enterprise,as well as the different understanding of the property service contract,the dispute over the liability for breach of the property service contract has become the focus of the most prominent dispute.Order to regulate the realty service,clarify the responsibilities of parties in the contract,reduce property services disputes,China has issued and revised the "property management ordinance,enacted the property dispute of interpretation,interpretation of the building differentiation ownership,such as local governments have also introduced the corresponding laws and regulations,in order to more effective and orderly operation and development of the specification of the realty service industry.However,there are still many problems and inadequacies in the regulation of the liability for breach of contract of property service contract.For example,how to define the nature of property service contract? How should the subject of the liability for breach of a property service contract be identified? How should the property service enterprise and owner assume their respective liability for breach of contract? And so on.Therefore,the author intends to take the property service contract default liability as the research object and focus on the discussion of the controversial issues in the theory and practice,hoping to help solve the relevant problems.This paper is divided into four parts except the introduction part.The first part mainly adopts the comparative analysis method and combines the development trend of property service.Based on the existing theories and practices,the property service contract is characterized as a new type,independent,famous,double-dealing and paid contract.The purpose of this contract is to clarify the rights and obligations of both parties and to reduce disputes on the liability for breach of the property service contract caused by its ambiguity.The second part from the property contract of the subject and other subjects of the perspective of the subject to analyze the subject of its liability for breach of contract.It is clear that the owner and the property service enterprise are the natural subject of the property service contract,and the property user and the property owners committee can become the subject of the property service contract under certain circumstances.In view of the owners’ conference,although some people think that the subject qualification of the owners’ conference should be recognized,the author believes that it is not appropriate to recognize the subject qualification of the owners’ conference from the perspective of facilitating people’s lawsuit and timely and effective protection of the public interests based on the existing theory and practice in China.The third part analyses the typology of property service contract liability for breach of contract.The subject of property service contract breach liability is property service enterprise and owner.Clarify the property service enterprises in the owners of infringement of damages,liability for breach of contract compensation;In addition to the obligation to return the illegal fees,it shall also bear the liability of compensation for the interests received;If they fail to perform their obligation of sincerity,they may,in light of the actual situation,be required to continue to perform the obligation and be liable for the losses caused.When determining the owner’s breach,we should distinguish the different defenses and clarify the third party’s infringement is not the reasonable defenses of the owner.Specify that the subject of the property service fee payment obligation is the property service enterprise,not the owner’s committee;the new owner shall not be obliged to pay the service fee owed by the old owner.For the payment of liquidated damages,the premise is the agreement of the property service contract,and in the trial practice,the judge has the right to choose to explain or not to explain the liquidated damages.The fourth part is the perfection of our country property service contract default responsibility system.Based on the analysis of the first three parts and the current situation of the liability for breach of property service contract in China,the author thinks that it is urgent to stipulate the property service contract in the civil code in the future to make it famous.In order to effectively protect the common interests of the owners,the legal status of the owners’ committee should be clarified.Relevant provisions of the property management ordinance should also be amended in accordance with the facts;finally,we should refer to the foreign advanced experience and combine the national conditions of China from the property service enterprises and the owners of these two aspects to build the property service guarantee mechanism.