Relevant provisions on legal liability of property management

(a) the administrative responsibility of the construction unit in violation of the provisions of the bidding

Article 57 If, in violation of the provisions of this Ordinance, a residential property construction unit hires a property management enterprise without bidding or approval, and employs a property management enterprise by agreement, the real estate administrative department of the local people's government at or above the county level shall order it to make corrections within a time limit, give it a warning and may concurrently impose a fine of more than 6,543,800 yuan.

In order to protect the legitimate rights and interests of the owners and avoid collusion between the construction unit and the property management enterprise in the pre-service process of the property before the owners and the owners' meeting choose a new property management enterprise, and infringe on the legitimate rights and interests of the owners, in view of the current situation that the property management enterprise is privately selected by the construction unit, Article 24 of the Ordinance stipulates that the state encourages the construction unit to choose and hire the property management enterprise through bidding according to the principle of separating real estate development from property management. The construction unit of residential property shall select a property management enterprise with corresponding qualifications through bidding; If the number of bidders is less than three or the residential scale is relatively small, with the approval of the real estate administrative department of the district or county people's government where the property is located, a property management enterprise with corresponding qualifications may be selected by agreement. This article ensures the implementation of article 24 from the perspective of legal responsibility. After this kind of illegal behavior, the administrative organ first ordered it to make corrections within a time limit, asked the construction unit to hire property management companies in a correct way and gave a warning. The administrative organ may also exercise its discretion to decide whether to impose a fine according to the circumstances or consequences of the illegal act.

(two) the administrative responsibility and civil liability of the construction unit without authorization.

Fifty-eighth construction units in violation of the provisions of this Ordinance, unauthorized disposal of the ownership or right to use the property parts and facilities belonging to the owners, the real estate administrative departments of the local people's governments at or above the county level shall impose a fine of not less than 50 thousand yuan but not more than 200 thousand yuan; If losses are caused to the owners, they shall be liable for compensation according to law.

This article stipulates the administrative responsibility and civil responsibility of the construction unit for unauthorized disposal. Transferring the property parts and facilities used by the owners according to law is a serious civil tort, and the violator must bear civil liability for compensation to the obligee. Secondly, in the field of property management, because many owners are involved in the property management area, the construction unit arbitrarily disposes of the parts and facilities of the property owned or used by the owners, which has infringed on the interests of the public and constituted an act of undermining administrative order, and should be given administrative punishment. Violators should bear the administrative responsibility of fines.

To be clear, civil responsibility and administrative responsibility are not mutually exclusive, and administrative responsibility is a responsibility to the state and has the nature of punishment; Civil liability for compensation is the responsibility of the infringed owner, which is not punitive, but generally only compensatory, with the purpose of restoring the interests of all people to the state before the infringement. Therefore, taking administrative responsibility does not affect civil liability, and vice versa. However, when the property of the infringer is insufficient to bear civil liability and accept administrative punishment, priority should be given to ensuring the realization of civil liability.

(3) Administrative responsibility for refusing to hand over information

Fifty-ninth in violation of the provisions of this Ordinance, the relevant information is not handed over, and the real estate administrative department of the local people's government at or above the county level shall order it to make corrections within a time limit; If the relevant materials are still not handed over within the time limit, the construction unit and the property management enterprise shall be notified, and a fine of 1 10,000 yuan or more and 6.5438+10,000 yuan or less shall be imposed.

This article stipulates the administrative responsibility for refusing to hand over information. Real estate information and related real estate should be integrated, and its ownership should belong to all owners. In property management activities, when there is a dispute between the construction unit, the property management enterprise and the owner due to property management problems, it is often the party who has the information that refuses to hand it over to the other party. Because these materials are the basic materials necessary for property management and maintenance, if the party holding the materials refuses to hand them over, it will cause many obstacles to the other party's work and undermine administrative order. Therefore, the regulations specifically stipulate the administrative responsibility for refusing to hand over.

(four) do not have the administrative responsibility and civil liability to engage in property management qualifications and the legal consequences of defrauding management qualifications.

Article 60 Anyone who violates the provisions of these regulations and engages in property management without obtaining a qualification certificate shall be confiscated by the real estate administrative department of the local people's government at or above the county level and fined between 50,000 yuan and 200,000 yuan; If losses are caused to the owners, they shall be liable for compensation according to law; Whoever obtains a qualification certificate by deception shall be punished in accordance with the provisions of the first paragraph of this article, and the qualification certificate shall be revoked by the department that issued the qualification certificate.

This article stipulates the administrative liability, civil liability and legal consequences of defrauding management qualifications. Because property management is directly related to the daily life of the general public, in order to ensure the normal development of property management and provide high-quality management services for owners, China implements a qualification management system for property management enterprises, and engages in property management business without the qualification assessment and qualification certificate of the competent department, which is an act of disrupting market order and should be subject to administrative punishment. On the other hand, the property service agreement signed between the enterprise without qualification certificate and the owner is invalid. If an illegal act of an enterprise causes losses to the owner, the illegal enterprise must bear civil liability for compensation. When the property of the infringer is insufficient to bear civil liability and accept administrative punishment, priority should be given to ensuring the realization of civil liability.

(five) the legal responsibility of the property management enterprise to hire people without professional qualifications.

Article 61 If a property management enterprise, in violation of the provisions of these Regulations, hires personnel who have not obtained the professional qualification certificate of property management to engage in property management activities, the real estate administrative department of the local people's government at or above the county level shall order it to stop the illegal act and impose a fine of not less than 50,000 yuan but not more than 200,000 yuan; If losses are caused to the owners, they shall be liable for compensation according to law.

This article stipulates the legal responsibilities of property management enterprises in employing unqualified personnel, including administrative responsibilities and civil responsibilities. The quality of property management personnel determines the service level and quality of property management. In order to ensure the smooth development of property management activities and safeguard the legitimate rights and interests of owners according to law, the regulations not only stipulate the qualification requirements of property management enterprises, but also stipulate the qualification requirements of employees of property management enterprises, requiring property management employees to have corresponding business capabilities and knowledge levels. However, if the property management enterprises ignore this requirement and still employ people who have not obtained the professional qualification certificate of property management, the requirements for employees' friendship will become empty talk, and the illegal phenomenon of unqualified personnel cannot be eliminated from the root. Therefore, in order to prevent unqualified employees from entering the property management human resources market, this article specifically stipulates the legal responsibility for illegally hiring unqualified employees.

(six) the legal liability of the property management enterprise in violation of the entrusted management restrictions.

Article 62 If a property management enterprise entrusts all property management in a property management area to others in violation of the provisions of these Regulations, the real estate administrative department of the local people's government at or above the county level shall order it to make corrections within a time limit and impose a fine of more than 30% and less than 50 "6" of the entrusted contract price; If the circumstances are serious, the qualification certificate shall be revoked by the department that issued the qualification certificate. The entrusted income is used for the repair and maintenance of * * * parts and * * * facilities and equipment in the property management area, and the rest is used according to the decision of the owners' meeting; If losses are caused to the owners, they shall be liable for compensation according to law.

This paper is about the legal responsibility of property management enterprises for violating the restriction of entrusted management. The owners' meeting selects a property management company, and the property management company can only undertake property management projects if it meets certain qualifications. Owners only choose the corresponding property management company based on the recognition of their management ability and service level. Except for some special services that can be entrusted to professional service companies, other related property services should be completed by the selected company. The property management enterprise entrusts all the property management in a property management area to others, which may also cause the evasion of the property management qualification management system and make the qualification management system ineffective. Therefore, the administrative organ will impose administrative punishment on this behavior. In addition, entrusting all the property management in a property management area to others is also a violation of the property service contract signed with all the owners and should bear corresponding civil liabilities. If losses are caused to the owners, they shall be liable for compensation.

(seven) the legal responsibility for misappropriating special maintenance funds.

Article 63 If anyone misappropriates special maintenance funds in violation of the provisions of these Regulations, the real estate administrative department of the local people's government at or above the county level shall recover the misappropriated special maintenance funds, give a warning, confiscate the illegal income, and may impose a fine of less than 2 times the misappropriated amount; Property management companies misappropriate special maintenance funds, and if the circumstances are serious, the qualification certificate shall be revoked by the department that issued the qualification certificate; If the case constitutes a crime, the directly responsible person in charge and other directly responsible personnel shall be investigated for criminal responsibility according to law.

This article is about the legal responsibility of misappropriating special maintenance funds. Housing special maintenance funds can only be used for specific purposes, that is, housing maintenance and conservation. The act of misappropriating special maintenance funds first violates the provisions on the management and use of special maintenance funds in Article 35 of the Regulations, and the parties, whether legal persons or natural persons, shall bear the liability for breach of contract; Secondly, it also violates the provisions of the second paragraph of Article 54 of the Regulations. "The special maintenance funds belong to the owners and are dedicated to the maintenance, renewal and transformation of the * * * parts and * * * facilities and equipment of the property after the warranty period expires. Do not use it for other purposes. " Misappropriation of special maintenance funds not only violates the provisions of these regulations, but also violates the stipulations of the property service contract and should be punished. Misappropriation of special maintenance funds may also involve criminal legal responsibility. The charges that may be involved here are misappropriation of funds or misappropriation of public funds.

(eight) the legal responsibility of the construction unit (developer) for not configuring the property management room.

Article 64 If a construction unit violates the provisions of these Regulations and fails to allocate necessary property management premises in the property management area, the real estate administrative department of the local people's government at or above the county level shall order it to make corrections within a time limit, give it a warning, confiscate its illegal income and impose a fine of 6,543,800 yuan to 500,000 yuan.

This article is mainly about the administrative legal responsibility for violating the provisions of Article 30 of these regulations that "the construction unit shall allocate necessary property management houses in the property management area according to the regulations". Property management room is a prerequisite for normal property management, and the construction unit should reserve the necessary property management room for the development and construction to consider property management. Failing to allocate the necessary property management houses in accordance with the provisions, which affects the development of property management and damages the legitimate rights and interests of all owners in the property management area, shall be given administrative punishment.

(nine) the legal responsibility of property management enterprises to change the use of property management houses without authorization.

Article 65 If a property management enterprise, in violation of the provisions of these Regulations, changes the use of its property management premises without the consent of the owners' meeting, the real estate administrative department of the local people's government at or above the county level shall order it to make corrections within a time limit, give it a warning and impose a fine of 6,543,800 yuan to 6,543,800 yuan; If there is income, the income will be used for the maintenance and conservation of parts, facilities and equipment used in the property management area, and the rest will be used according to the decision of the owners' meeting.

This article stipulates the legal responsibility of property management enterprises to change the use of property management houses without authorization. Property management houses are owned by the owners and provided to property management enterprises exclusively for property management. Changing the nature of property management premises without authorization infringes on the property rights of owners, and at the same time will inevitably affect the quality of property management, and administrative punishment should be given. In addition, because the act of changing the use of property management houses without authorization is essentially an infringement on the property rights of owners, the way to deal with illegal income in this article actually stipulates the way to bear civil liability. In other words, the administrative organ shall return the seized illegal income to the owners, giving priority to the maintenance of the parts and facilities of the property, and the rest shall be decided by the owners' meeting. It is a major feature of the Regulations to realize the government's management of social affairs by stipulating civil liability.

(ten) the legal responsibility of the owners and property management companies for their unauthorized behavior.

Article 66 Anyone who violates the provisions of these Regulations and commits any of the following acts shall be ordered by the real estate administrative department of the local people's government at or above the county level to make corrections within a time limit, given a warning and fined in accordance with the provisions of the second paragraph of this article; The proceeds will be used for the maintenance of * * * parts and * * * facilities in the property management area, and the rest will be used according to the decision of the owners' meeting: (1) changing the use of public buildings and * * * facilities built according to the plan in the property management area without authorization; (two) unauthorized occupation and excavation of roads and sites within the property management area, which harms the interests of the owners; (3) Unauthorized use of the * * * part of the property and the * * * facilities for operation. Individuals who commit one of the acts listed in the preceding paragraph shall be fined 1000 yuan or more and 10000 yuan or less; If a unit commits one of the acts listed in the preceding paragraph, it shall be fined between 50,000 yuan and 200,000 yuan.

This article is about the legal responsibility of owners and property management enterprises for their unauthorized behavior. The subject of illegal acts in this article may be various, including both owners and property management enterprises. Their common feature is that they infringe on the interests of the property management area, so their illegal behavior not only infringes on the administrative management system, but also infringes on the legal rights of all owners in essence. Therefore, if they get benefits because of illegal activities, this part of the income actually comes from the rights of the owners. The maintenance and conservation of the parts, facilities and equipment that should be used for the property, and the rest should be decided by the owners' meeting, not confiscated by the state. This article also embodies the spirit of realizing the purpose of administrative management by stipulating the way of civil liability. Similarly, for civil violations, priority is given to administrative punishment and civil liability.

(eleven) the civil liability of the owner for failing to pay the property service fee within the time limit.

Sixty-seventh in violation of the property service contract, the owners failed to pay the property service fee, the owners' committee shall urge them to pay within a time limit; If it fails to pay within the time limit, the property management enterprise may bring a lawsuit to the people's court.

This article stipulates the civil legal liability of the owner for failing to pay the property service fee within the time limit. Because the owner is in the core position in the legal relationship of property management, all property management activities are carried out around the owner and his interests. On the other hand, owners have also undertaken many obligations in property management, and violation of these obligations will inevitably bear legal responsibility. There is an equal civil legal relationship between the owner and the property management enterprise. Property management companies provide certain standard services according to property service contracts, and owners pay property service fees on time. The owner fails to pay the property service fee, which constitutes a violation of the property service contract or the owners' convention, and shall bear corresponding legal responsibilities.

(twelve) the legal liability of the owners to engage in illegal activities in the name of the owners' congress or the owners' committee.

Sixty-eighth owners in the name of the owners' congress or owners' committee, engaged in activities that violate laws and regulations, which constitutes a crime, shall be investigated for criminal responsibility according to law; If it does not constitute a crime, it shall be given administrative penalties for public security according to law.

This article is about the criminal responsibility and administrative responsibility of owners who engage in illegal activities in the name of owners' assembly or owners' committee. The owners' congress represents and safeguards the legitimate rights and interests of all owners in the property management activities within the property management area. The owners' congress and the owners' committee shall perform their duties according to law, and shall not make decisions or engage in activities unrelated to property management. In practice, some owners use the name of owners' congress or owners' committee to engage in activities unrelated to property management, such as gathering people to make trouble, fighting, engaging in feudal superstitious activities, and even going to the underworld. Although these activities are carried out in the name of owners' assembly or owners' committee, they are not authorized and have nothing to do with property management. Those who use the owners' congress or owners' committee to engage in illegal activities shall bear legal consequences. If these illegal acts constitute a crime, criminal responsibility shall be investigated according to law. If the violation is serious, but it does not constitute a crime, it shall be punished in accordance with the regulations on administrative penalties for public security.

(thirteen) the criminal and administrative legal responsibility of the staff of the real estate management department to accept other people's property or other benefits.

Article 69 If, in violation of the provisions of these Regulations, the staff of the construction administrative department of the State Council, the real estate administrative department of the local people's government at or above the county level or other relevant administrative departments take advantage of their positions to accept other people's property or other benefits, fail to perform their supervision and management duties according to law, or fail to investigate and deal with illegal acts, which constitutes a crime, criminal responsibility shall be investigated according to law; If it does not constitute a crime, it shall be given administrative sanctions according to law.

This article is about the criminal and administrative legal responsibility of the staff of the property management department to accept other people's property or other benefits. The illegal acts of administrative organs in administrative management include acts and omissions. The illegality of behavior refers to the fact that the administrative actions of administrative organs in property management activities violate the legal norms or the obligation not to act as a certain behavior, and the illegality of behavior is usually manifested as a positive illegal behavior. The illegality of omission means that the administrative organ fails to fulfill the legal norms or the administrative act violates the obligations set for it, and the illegality of omission is usually manifested in a negative state. Whether it is an illegal act or omission, it violates legal obligations and damages the management counterpart and the state management order, and all of them should bear legal responsibility.