Research On Civil Legal Issues Of Property Service Contract

With the development of society,China’s property service industry is also developing gradually.The promulgation of the civil code clarified the independent status of the property service contract from the legislative level for the first time,and solved the long-term disputes between the theoretical and practical circles.The property service contract is a contract signed by the owners’ committee as a representative with the selected property service enterprise after the effective resolution is adopted by the owners’ assembly.Its theoretical basis includes contract bearing theory,factual contract theory,principal-agent theory and so on.After analyzing the guidance cases issued by the Supreme People’s Procuratorate,the cases of Article 19 of the rules for the adjudication of disputes over property service contracts and the typical cases tried by various courts,it is sorted out that the current judicial situation in China is as follows:(1)disputes caused by unclear provisions of the parties to the contract;(2)There are many disputes over property expenses;(3)The rights and obligations disputes of the parties are complex and diverse;(4)Disputes involving the validity of the contract.After all,the emergence of judicial disputes is the lack of legislation.There are the following problems in the legal provisions:(1)the definition of the parties to the contract is vague;(2)There are defects in the provisions of contractual rights and obligations;(3)Failure to specify the liability of the parties to the contract for breach of contract;(4)The validity of the contract is not clearly stipulated;(5)There is a lack of regulatory provisions for the early property service contract.In view of the above problems,we can refer to the relevant provisions of major oversea countries and regions :(1)The United States sets up professional property services and stipulates that owners’ associations can use liens;(2)The UK defines the evaluation criteria of property services in the contract;(3)Canada defines the validity of the contract and the responsibilities of the industry committee;(4)Chinese Hong Kong has set up a special organization to supervise the implementation of the contract;(5)Germany stipulates the special remuneration and contract period in the contract;(6)Japan has enriched the management authority of the Council portfolio.The extraterritorial legal provisions can be combined with the actual situation of our country to enrich and improve the legislative provisions of our country.In combination with oversea regulations,the following measures can be taken to refine and improve:(1)the main body of the contract should be all owners and property service providers,and property service providers refer to enterprises and individuals providing property services;(2)In the setting of rights and obligations,mandatory provisions can be applied to the principled provisions on basic and important property service matters,and the specific details can be agreed by the owners’ assembly and the property service enterprise;(3)For the breach of contract of the property service enterprise,the owner should be given the right to defend,and the owner can be given preferential protection with reference to the identity of "consumer";(4)The industry committee must be elected by the owners’ meeting and registered by relevant departments.The contents of the contract must be legally and effectively voted by the owners’ meeting.The validity of the contract signed by the industry committee beyond its authority can refer to the provisions of the entrustment contract;(5)Strengthen the management of early-stage property service contract,and do not generally think that the contract is binding on the owner.The owner should be allowed to modify the content of the contract according to legal procedures after occupancy,and the contract agreement infringing on the owner’s rights should be deemed invalid;(6)Increase the number of guiding cases,provide guidance for the court to hear disputes,and strengthen the authority of justice;(7)Introduce social grass-roots organizations to mediate and give full play to the mediation role of grass-roots organizations;(8)Strengthen the owners’ awareness of rights protection,broaden the channels of rights protection,and standardize the owners’ rights protection behavior.