The role of legalization of property management

Problems that need to be solved when property management enters the stage of legal development "Property Management Regulations" promulgated and implemented in the State Council for one year (hereinafter referred to as "Regulations") is the first administrative regulation of property management in China, which points out the development direction for China's property management industry, and also puts forward many new topics that need to be studied and solved urgently at this stage. First, build a property management system suitable for China's national conditions. The management system of the industry depends on the economic system of the country. After the reform and opening up, China has gradually established a socialist market economic system. With the further deepening of the housing system reform, building a property management system suitable for China's national conditions is the primary problem faced after the promulgation and implementation of the Regulations, and it is also the basis and premise for the healthy development of the property management industry. 1, transforming government functions. The main task of the government is to provide and maintain an equal competitive market environment for the normal operation of property management activities, cultivate and improve a developed property management market system, and only intervene directly when there are market defects, unfair competition and crises. 2. Build a perfect industry self-discipline mechanism. First, straighten out the relationship between trade associations and the government. The early trade associations basically came from the government and had the characteristics of "two governments" or "quasi-governments". At this stage, trade associations must really change their roles, from relying entirely on the government to relying on the government, changing the pattern that the administrative department did not care about anything in the past, and effectively making the associations rely on enterprises, face the government, and become real enterprise self-discipline organizations. In the process of building a perfect industry self-discipline mechanism, straightening out the relationship between industry associations and property management enterprises is the premise, strengthening the construction of rules and regulations is the key, and giving full play to the functional role of industry associations is the key. 3. Build a perfect owner self-discipline mechanism. The owners' convention is obviously the most important contract document for owners' autonomy and self-discipline. Therefore, the key to improve the owner's self-discipline mechanism lies in standardizing the formulation, implementation and handling of violations of the owners' convention. First, in the early stage of property management, the construction unit is responsible for formulating the owners' temporary convention. Although the regulations clearly stipulate that the temporary owners' convention cannot harm the legitimate rights and interests of property buyers, the temporary owners' convention is formulated by the construction unit. Is it necessary to review? Who will review it? Second, at present, China's laws and regulations do not give any institution the right to investigate the responsibility of owners or property users who violate the owners' convention. Third, we should solve the "asymmetry" problem of the parties to the property service contract. The owners' committee that signed the contract has no independent legal personality, and the owners with independent legal personality do not sign the contract. This has led to the "asymmetric" contradiction between the two parties to the contract. If the property management enterprise breaches the contract, it is easy to bear civil liability. However, if the owner breaches the contract, it cannot be regarded as a breach of contract by the owners' committee, nor can it be regarded as a breach of contract by the owners' assembly, and only the individual owner who breaches the contract can be investigated. In fact, property management companies are faced with many individual owners, and the rights and obligations here are obviously unequal. Second, further improve the property management mechanism. To thoroughly implement the Regulations and promote the healthy development of property management, we must further improve the management mechanism of property management, including market access mechanism, competition mechanism and supervision mechanism. 1. Improve the market access mechanism. Article 32 of the Regulations sets two thresholds for enterprises engaged in property management activities: the first threshold is that enterprises engaged in property management must have independent legal personality, which is the most basic requirement for market access. The second threshold is to implement the qualification management system of property management enterprises. Property management companies with different qualifications can only engage in property management activities within the corresponding geographical scope and corresponding property scale. Survival of the fittest and freedom of advance and retreat are important signs of an industry's maturity, so a complete market access mechanism should include two systems: market access and market exit. At present, the focus of the property management industry is to strengthen the construction of the market exit system. First, it is necessary to effectively implement the provisions of Article 32 of the Regulations, clean up property management organizations that do not yet have the qualification of independent legal persons, and complete the corporate restructuring within a time limit, which is also of great significance for thoroughly solving the long-standing problem of "no distinction between construction and management"; The second is to improve the operation of the owners' meeting and implement the right of the owners' meeting to hire and dismiss property management companies according to law; Third, we will continue to improve the dynamic management of the qualifications of property management enterprises, implement annual qualification examination, conduct qualification assessment every two years, and strictly review according to standards. If the qualification level rises, it will rise, and if it falls, it will fall; Fourth, establish a complete supervision mechanism, give full play to the functions of administrative supervision, industry supervision, social supervision, judicial supervision and owner supervision, and demote or retire in time when there are legal conditions for demotion or retirement. 2. Improve the competition mechanism of the property management market. Competition is the basic feature of the market economy, and the biggest advantage of competition is that it can maximize the allocation of social resources. The most important thing to introduce market competition mechanism is to improve and implement property management bidding. Judging from the current situation of the property management bidding market, China's property management bidding system still needs to be deepened and improved. First of all, at present, most residential quarters are managed by property management enterprises under the development and construction units, and owners' meetings and owners' committees are rarely established. There is still a lot of work to be done to implement Article 24 of the Regulations. Secondly, the property management bidding agencies will be brought into the industry management, and in the "black-box operation" of property management associations such as property management bidding, every link of property management bidding such as fair, just and open market competition environment will be vigorously rectified. Under the guidance of the competent government departments, they are fully capable of undertaking the functions of property management bidding agencies, and experts in the established expert database can also undertake professional and technical bid evaluation. Finally, we should give full play to the role of property management industry associations and bidding expert judges. 3. Improve the supervision mechanism of property management. At present, China is in the primary stage of socialism, and the established generalized legal supervision system is a multi-system, multi-level and multi-structure supervision system. It consists of three subsystems: legal supervision, discipline supervision and social supervision, and it can also be divided into nine elements: political party supervision, state supervision (including the supervision of people's congresses at all levels and their standing committees), administrative supervision, procuratorial supervision, judicial supervision, democratic party supervision, social organization supervision, public opinion supervision and people's supervision. The structure of the legal supervision system of property management should also include the above three categories and nine elements, but in the supervision of social organizations, the supervision role of owners' committees, property management enterprises, residents' committees, property management industry associations and consumers' associations is more prominent; In people's supervision, the supervisory role of owners, property users and employees of property management enterprises is more prominent; In the supervision of administrative organs, the role of centralized management and supervision of government real estate administrative departments has been clarified. Third, it is urgent to straighten out various interface problems of property management. The legal relationship involved in property management activities is more complicated than other civil activities. Straightening out these relationships is a huge systematic project and the only way to ensure the healthy development of the property management industry. 1, straighten out the connection between commercial housing sales and property management. First of all, effective measures should be taken to prevent the construction unit from infringing on the legitimate rights and interests of buyers when formulating the temporary owners' convention; Secondly, it is necessary to clarify the filing system of the previous property service contract; Thirdly, it is necessary to formulate practical measures to ensure that the property sales contract includes the contents of the previous property service contract. Article 2 1 of the Regulations does not force the construction unit to hire a property management company before property sales. If a property management company is not hired, the property sales contract cannot contain the contents of the previous property service contract, which will not be conducive to protecting the legitimate rights and interests of the owners and the property management company. Finally, it is necessary to clarify the way for the construction unit to express the temporary owners' convention to the property buyer before the property is sold and the way for the property buyer to make a commitment to the temporary owners' convention. If the property sales contract contains the temporary owners' convention, the model property sales contract must be revised. 2. Straighten out the connection between public institutions and property management. Property management is closely related to public institutions such as water supply, power supply, gas supply, heating, communication and cable TV. It is our very realistic task to straighten out and solve the relationship between property management and these institutions. In general, the ownership of * * * facilities and equipment in the property area belongs to all owners, but some * * * facilities (mainly municipal facilities) in the property belong to the state. Distinguishing the ownership of facilities and equipment is of great significance to property management activities, which can not only divide the boundaries of state-owned assets, but also draw a clear line of management responsibilities. At present, the definition of power supply facilities, gas pipelines, tap water pipelines, telecommunication pipelines and heating pipelines is not clear, which leads to difficulties in operation, which not only easily leads to disputes, but also increases the burden of property management enterprises. 3. Straighten out the legal system of the property management industry itself. Before the promulgation of the "Regulations", the legislation of property management in various places was very inconsistent and even contradictory. After the promulgation of the "Regulations", all localities should take the "Regulations" as the criterion, comprehensively revise departmental rules, local regulations and local rules that are incompatible or contradictory with the provisions of the "Regulations", clarify the matters authorized by the "Regulations", and form a legal system of property management with China's civil laws and the "Regulations" as the core. 4. Study on the nature of the property service contract. There are always different opinions about the nature of property service contracts, especially "entrustment contracts". However, if the provisions of the Contract Law on entrustment contracts are applied, it is not difficult to find that the trustee (property management enterprise) needs to engage in entrusted affairs in the name of the principal, and all the consequences of the trustee's actions within the scope of entrustment shall be borne by the principal himself. At the same time, the client may entrust others to handle the same matter. These are not in line with the actual situation of the property management industry. Obviously, the property service contract is not an entrustment contract, and the provisions of the contract law on entrustment contracts cannot be applied. Therefore, how to apply China's "Contract Law" to property service contracts is worthy of in-depth study. 5. Conduct research on the nature and legal status of the owners' committee. This issue has been and is being discussed in depth in the industry. The unclear nature and legal status of the owners' committee will directly affect the establishment of the owners' self-discipline mechanism and the normal conduct of property management activities. 6, straighten out the ownership relationship of * * * places, facilities and equipment. The problem of differentiated ownership of buildings is a difficult problem in the discussion of property law. How to make clear the raising, use and supervision of the special maintenance funds derived from it belongs to the problem to be solved in property law. Before the introduction of the property law, how to deal with the property management industry really deserves our in-depth study.