The Exercise Of The Owner’s Right Of Defense In The Property Service Contract

The civil code and relevant judicial interpretation have made a special chapter on the property service contract system.However,even according to the provisions of the civil code and relevant judicial interpretation,the problems existing in the previous trial of property service contract disputes still exist,especially the dispute of the owner’s right of defense in theory and Practice,which is of great significance to the property service provided by the property service provider It is difficult to judge whether or not to breach the contract and the degree of breach.With the methods of literature research and empirical analysis,starting from the basic concept,nature and current situation of the owner’s right of defense,this paper finds and summarizes the controversial problems and the causes of the problems existing in the exercise of the owner’s right of defense,focusing on the analysis of the subject and reasons of the exercise of the owner’s right of defense,and on this basis,from the aspects of legislation,judicature and law implementation The author puts forward some suggestions to improve the system of the owner’s right of defense.The owner’s right of defense is the right that the owner has to fight against the claim of the property service provider.As the object of the owner’s right of defense,the claim is mostly presented as the property service provider claiming the property fee from the owner.The owner’s right of defense belongs to the right of sequential performance in nature,which is more reasonable.It not only urges the property service providers to provide high-quality property services,but also helps to maintain the consistency of the legal system.The legal basis of the owner’s right of defense comes from the property service contract between the owner and the property service provider.When the property service provider fails to perform or does not fully perform the property service obligation,the owner can exercise the right of defense with justifiable reasons.Both the owner and the owner committee should be the main body of the owner’s right of defense.All owners and individual owners can exercise the right of defense,and the owners committee can exercise the collective right of defense with the authorization of the owners.Combined with the civil code and other relevant laws and regulations after its implementation,the property service contract that does not conform to the law in the signing subject and signing process should be revocable,and the owners can protect their rights and interests by exercising the right of revocation.As for the defences to the invalidity of the prophase property service contract claimed by the owner,the civil code clearly stipulates the performance of the prophase property service contract,which is not based on whether the signing subject is the owner,and has legal effect on the owner.It is not legitimate for the owner to impose the responsibility of other subjects on the property service provider for the matters that do not belong to the service items and scope agreed in the property service contract,and exercise the right of defense on the ground that the property service provider fails to perform such service obligations.In view of the fact that property service providers collect property fees in violation of regulations,the civil code clearly endows owners with the legitimacy to exercise the right of defense.It is legitimate for the owner to exercise the right of defense on the ground that the property service quality does not conform to the agreement.In view of the exercise of the owner’s right of defense in the property service contract,it should be improved in the aspects of legislation,judicature and law enforcement.In the aspect of legislation,we should regulate the subject and cause of the exercise of the owner’s right of defense,especially the standard and proof of the service quality breach and the degree of breach of the property service provider.When there is a major breach of the property service quality and the fundamental purpose of the contract can not be achieved,we should reach the standard of the exercise of the owner’s right of defense and reduce the proportion of the breach of the property service provider Less or no property service fee.In view of the dispute over the exercise of the owner’s right of defense,we can explore the method of inversion of proof,in which the owner bears the preliminary burden of proof for the result that the property service does not comply with the agreement,and the property service provider provides evidence to prove that the property service provided by him is consistent with the agreement.In the judicial aspect,the court should explain and guide the owner to exercise the right of defense,and local courts should try their best to form the guiding standard of the judgment rules applicable to the local area.In the aspect of law enforcement,on the one hand,we should mobilize the enthusiasm of the owners to participate in the whole process of the conclusion and performance of the property service contract;on the other hand,we should encourage the property service providers to improve the property service level.We can make use of the market competition mechanism to select property service personnel by means of bidding;improve the overall level of the property service industry by gradually cultivating professionals in the field of property service and optimizing the property service mode;explore the establishment of a third-party evaluation and supervision system throughout the whole process of property service,and carry out neutral evaluation and supervision of property service.