Research On Legal Termination Rules Of Pre-property Service Contract

Property contract disputes have gradually become one of the main causes of trials involving the grassroots judiciary,and a major cause of disputes arises from the termination of pre-property service contracts.In the process of codification of the Civil Code,Article 940 was defined as the legal termination rule of the pre-property service contract.The deep logic of the normative construction of Article 940 of the Civil Code is that it constitutes a legal cause for the termination of the pre-property service contract,and therefore can break through the contractual relativity and make the pre-property service contract terminated by the conclusion of the ordinary property service contract.The construction unit enjoys the right of agency according to law,and the real subject of the preliminary property service contract concluded between it and the property service provider is the owner and the property service provider,and the effect directly binds the owner and the property service provider.Therefore,the termination rule in Article 940 of the Civil Code is not directly applicable between the construction unit and the property service provider.If the owner of the pre-property service contract after the expiration of the contract performance period does not express the intention to continue to provide property services by the property service provider and refuses to provide property services by the property service provider,the pre-property service contract is deemed to be terminated upon the expiration of the term,and there is no need to apply Article 940 of the Civil Code to terminate it,nor is it possible to transform it into an indefinite contract.If the term of performance has expired but the contract is impliedly renewed,Article948 of the Civil Code shall be applied by analogy,and Article 940 shall not be applied if the contract is terminated through the exercise of the right of advance notice.In Article 940 of the Civil Code,the subjects of the general property service contract are the owner and the new property service provider.The term "owner" shall be interpreted as the collective concept of all owners.At the same time,the "new property service provider" may also be the previous property service provider,except for the implied renewal of the property service contract.The decision of the owners to select or dismiss the property service provider is an act of resolution,and once established,it is binding on all voting rights.Therefore,in the application of Article940,in order to protect the "joint decision" of the owners,the owners or the owners’ committee and the new property service provider must comply with the legal procedures stipulated in Article 278 of the Civil Code in order to enter into a property service contract.If this procedure is not fully complied with,the resolution of the owners’ meeting is defective and is a revocable resolution,and the external validity of the resolution is preserved as much as possible based on the distinction between the internal and external validity of the resolution.Therefore,applying by analogy the rule of apparent agency in Article 172,if the new property service provider does its duty of examination and is in good faith,the ordinary property service contract it enters into with the owner is valid.The property service contract signed by the owners’ committee without the authorization of the owners’ general meeting or falsifying the resolution of the owners’ general meeting is not binding on all owners,and can only take effect after the owners’ general meeting has ratified it,which in turn can terminate the preliminary property service contract.Translated with www.Deep L.com/Translator(free version)After the termination of the pre-property service contract,based on the rule of return of unjust enrichment,the pre-property service provider shall return the property fee that has been collected in advance but not actually provided services in proportion.Based on the requirement of post-contractual obligations,if the owner enters into an ordinary property service contract with the new property service provider resulting in the termination of the prior property service contract,the owner shall promptly notify the prior property service provider,and there is no restriction on the form of notification except for prior agreement.Finally,it does not directly make the owner liable for damages due to the termination of the prior property service contract,but if the owner fails to fulfill the aforementioned notification obligation resulting in the liability for damages,the relevant provisions on breach of contract liability can be applied by reference.