Asking for documents: explanation of some problems about the specific application of law in the trial of property service disputes

You can usually find this online. I'll give you a version with relevant understanding.

The Supreme People's Court's Interpretation of Several Issues Concerning the Specific Application of Law in the Trial of Property Service Disputes

It will take effect on June 2009 10.

In order to correctly hear cases of property service disputes and protect the legitimate rights and interests of the parties in accordance with the law, this interpretation is formulated in accordance with the General Principles of the Civil Law of People's Republic of China (PRC), the Property Law of People's Republic of China (PRC), the Contract Law of People's Republic of China (PRC) and other legal provisions, combined with civil trial practice.

Article 1 The preliminary realty service contract signed by the construction unit and the realty service enterprise according to law, and the realty service contract signed by the owners' committee and the realty service enterprise selected by the owners' congress according to law are binding on the owners. If the owner raises a defense on the grounds that he is not a party to the contract, the people's court will not support it.

Interpretation: It is clear that the previous property management contract is binding on the owners. Although the owner is not the signatory of the previous property management contract, he is a party and should abide by the provisions of the previous property service contract.

The nature of the pre-realty service contract is really special, which is worth discussing. It is a contract on the rights and obligations of the owner signed by the developer and the pre-property service enterprise.

When it comes to the nature of "pre-property service contract", we can't help but mention the nature of "property service contract". "Pre-property service contract" and "property service contract" are two different famous contracts and should not be confused. The nature of the former is different from the latter because of the particularity of its signer and binding parties.

"Property Management Regulations" once changed "property management entrustment contract" to "pre-property service contract" and "entrustment contract" to "service contract", which seems to be a guide to the definition of contract nature, but first of all, it is a guide to the role orientation of property enterprises. At present, there are different views on the nature of property service contract, such as the nature of entrustment contract, the nature of completing service content, the mixed nature and the atypical contract. This explanation seems to think that the property service contract is a kind of entrustment contract (because it is also called "sub-entrustment").

Article 2 In any of the following circumstances, the people's court shall support the request of the owners' committee or the owners to confirm the invalidity of the contract or the relevant provisions of the contract:

(a) the entrustment contract that the realty service enterprise entrusts all the realty service business in the realty service area to others;

(2) clauses in the realty service contract that exempt the realty service enterprise from its responsibilities, increase the responsibilities of the owners' committee or owners, and exclude the main rights of the owners' committee or owners.

The realty service contract mentioned in the preceding paragraph includes the prophase realty service contract.

Interpretation: In reality, the property service enterprises in the early stage are basically controlled by developers, so there are inevitably conflict of interest clauses in the property service contracts in the early stage. In order to regulate the behavior of property service enterprises, several invalid situations of property contracts and other related contracts or terms (including previous property service contracts) are stipulated: (1) In order to prevent the confusion of the property service market, Article 40 of the Property Management Regulations stipulates that "a property service enterprise may entrust the special service business within the property management area to a professional service enterprise, but shall not entrust all the property management within the area to others at the same time." The Interpretation stipulates that the entrustment of property service enterprises is invalid. In reality, there are cases of subcontracting and subcontracting of property services. If it belongs to subcontracting, it is easy to have similar adverse consequences in the construction market. "Entrusting all the property services in the property services area to others" includes entrusting all the property services to professional or non-professional property services enterprises, and dismembering, entrusting and subcontracting. (2) The clauses that exempt the realty service enterprise from responsibility, increase the responsibility of the owners' committee or owners, and exclude the main rights of the owners' committee or owners are invalid (even if tips and explanations are given). The legal basis of this clause: Article 40 of the Contract Law stipulates that "if there are circumstances stipulated in Articles 52 and 53 of the Contract Law, or if the party providing the standard clause exempts its responsibility, aggravates the other party's responsibility and excludes the other party's main rights, the clause is invalid."

Such confirmation can be filed by the owners' committee or by the owners, both of which can be used as plaintiffs.

Article 3 If a realty service enterprise fails to perform or fails to fully perform its maintenance, conservation, management and repair obligations as agreed in the realty service contract or determined by laws, regulations and relevant industry norms, and the owner requests the realty service enterprise to bear the liabilities for breach of contract such as continuing to perform, taking remedial measures or compensating for losses, the people's court shall support it.

The service promises made publicly by the realty service enterprise and the service rules formulated shall be regarded as part of the realty service contract.

Interpretation: This article is easy to understand. The obligations of the realty service enterprise include: 1) laws and regulations; 2) industry norms; 3) contractual agreement; 4) Public service commitment and service details.

For the service items that do not belong to the realty service enterprise, the realty service enterprise must be listed as an express clause in the realty service contract, but this cannot exceed the invalidity of exemption in Article 53 of the Contract Law: (1) causing personal injury to the other party; (2) Causing property losses to the other party due to intentional or gross negligence.

At the same time, it should be noted that not only the owners' committee can sue, but the owners have the status of litigation subject and can sue on their own.

This kind of claim for compensation for breach of contract can be filed by the owners' committee or the owners, both of which can be used as plaintiffs.

Article 4 The people's court shall support the owners who violate the realty service contract or laws, regulations and management conventions and conduct acts that hinder the realty service and management, and the realty service enterprise requests the owners to bear corresponding civil liabilities such as restoring the original state, stopping the infringement and removing the obstruction.

Explanation: Owner's violation (violation of laws, regulations and management regulations) or breach of contract. Property service enterprises can sue the owners as plaintiffs as appropriate. The management agreement shall stipulate the use, maintenance and management of the property, the interests of the owners, the obligations that the owners should perform and the responsibilities that they should bear if they violate the management agreement. Management regulations shall respect social morality and shall not violate laws and regulations or harm public interests. Management regulations are binding on all owners. (Article 17 of the Property Management Regulations)

The construction unit shall formulate a temporary management agreement before selling the property, and make an agreement on the use, maintenance and management of the property, the interests of the owner, the obligations that the owner should perform, and the responsibilities that should be borne in violation of the temporary management agreement. The temporary management regulations formulated by the construction unit shall not infringe upon the legitimate rights and interests of property buyers. The construction unit shall express the temporary management agreement to the property buyer before the property is sold and explain it. When signing a property sales contract with the construction unit, the property buyer shall make a written commitment to abide by the temporary management agreement. (Articles 22 and 23 of the Property Management Regulations)

Article 5 Where a realty service enterprise violates the stipulations of the realty service contract or the provisions of laws, regulations and departmental rules, it expands the charging scope, raises the charging standard or charges repeatedly without authorization, and the owner raises a defense on the grounds of illegal charging, the people's court shall support it.

The people's court shall support the owners' request to the realty service enterprise to refund the illegal fees charged by them.

Interpretation: Articles 41 and 44 of the Regulations on Property Services stipulate that property service charges should follow the principles of reasonableness, openness and adaptation of charges to service levels, and distinguish the nature and characteristics of different properties. Owners and property service enterprises shall, according to the measures for charging property services formulated by the competent price department of the State Council in conjunction with the competent construction administrative department of the State Council, stipulate in the property service contract. The realty service enterprise may, according to the entrustment of the owners, provide services other than those stipulated in the realty service contract, and the service remuneration shall be agreed by both parties.

Articles 6 and 7 of the Measures for the Administration of Property Service Charges stipulate that property service charges shall be subject to government-guided prices and market-regulated prices according to the nature and characteristics of different properties. The specific pricing form shall be determined by the price departments of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government in conjunction with the real estate administrative departments. If the property service charges are subject to government-guided prices, the competent price department of the people's government with pricing power shall, jointly with the real estate administrative department, formulate the corresponding benchmark price and its floating range according to factors such as the standard of property management service level, and publish it regularly. The specific charging standard is agreed by the owner and the property management enterprise in the property service contract according to the specified benchmark price and floating range. The property service charges that are regulated by the market shall be agreed by the owners and the property management enterprises in the property service contract. Property management service charges of property management enterprises should also comply with the provisions of the National Development and Reform Commission and the Ministry of Construction's Measures for the Supervision and Examination of Property Service Pricing Costs (Trial) (No.2285 of Development and Reform Commission [2007]) and Notice on Printing and Distributing the Provisions on Clearly Marking Property Service Charges (No.1428 of Development and Reform Commission).

Property service enterprises should pay attention to charges according to the above provisions, and should avoid: 1) expanding the scope of charges without authorization; 2) raise the charging standard without authorization; 3) Repeated charges. 1) and 2) property service charges for government-guided prices, and 3) property service charges for government-guided prices and market-adjusted prices.

Of course, this provision does not mean that the realty service enterprise cannot expand the charging scope or raise the charging standard, but should comply with the stipulations of the realty service contract or the provisions of laws, regulations and departmental rules.

Article 6 If an owner refuses to pay the property fee without justifiable reasons or fails to pay the property fee within a reasonable period after being urged in writing, the people's court shall support the property service enterprise in requesting the owner to pay the property fee. Property service enterprises have provided services in accordance with the contract and relevant regulations, and the people's court will not support the owners' defense on the grounds that they do not enjoy or need to accept relevant property services.

Interpretation: This article stipulates the pre-procedure for the owner to refuse to pay the property service fee: First, a written reminder. After being reminded, only when there are two reactions can the owner sue for property fees: 1) refusal to pay; 2) Failing to pay within a reasonable period of demand. As for how to judge a reasonable period, it is hard to say. I think a week is reasonable.

It is inconvenient to remind by oral or telephone, but the "written" here should be the same as the "written" way of signing a contract in Article 10, paragraph 2 of the Contract Law. In this case, the property company should have a written address or contact information determined by the owner.

Paragraph 2 of Article 10 of the Contract Law, where the written form is required by laws and administrative regulations. If the parties agree to use written form, it shall be in written form.

When the property company provides services according to the contract or other agreements, and the owner refuses to pay the property service fee or requests preferential treatment for reasons such as not enjoying (the house is idle, going out, etc.). ) or do not accept related property services (do not use elevators, etc. ), the property service company may not agree, and the people's court will not support such demands or defenses of the owners.

However, in reality, many property service companies refuse to pay property service fees because they do not provide services in full accordance with the contract and relevant regulations, or the owners claim that the services provided by the property service companies are not in place.

Property service enterprises shall bear the burden of proof if they provide services in full accordance with the contract and relevant regulations.

Article 7 If the owner and the lessee, borrower or other user of the property agree that the user of the property will pay the property fee, and the property service enterprise requests the owner to bear joint liability, the people's court shall support it.

Interpretation: It is a repetition of Article 42 of the Property Management Regulations. The realty service enterprise can take the initiative to require the owner and the lessee, borrower or other property user of the property to agree in the lease or loan contract that the property user will pay the property fee, and then the realty service enterprise can require the owner and the property user to bear the joint liability for payment. It should be noted that if the property fee is in arrears: 1), only the owner can be sued; 2) Add the actual user after suing the owner, or directly list the owner and the property user as * * * co-defendants when suing. In such cases, the owner and the actual user are listed as the same defendant, not just the property user. The author believes that if a tripartite property service enterprise, the owner or the actual user of the property reaches a contract or the user of the property and the property service enterprise reach an agreement to pay the property service fee, only the actual user of the property can be prosecuted. In the above-mentioned cases in which the actual user of the property is listed as the defendant, the actual user of the property can raise the defense that the property service enterprise has not fulfilled the contract or the contract has not been fully fulfilled.

Article 42 of the Property Management Regulations stipulates that "the owner shall pay the property service fee in accordance with the property service contract. If the owner and the user of the property agree that the user of the property shall pay the property service fee, the owner shall bear joint and several liability from the agreement. For properties that have been completed but have not been sold or handed over to buyers, the property service fee shall be paid by the construction unit. "

Article 8 If the owners' committee requests to terminate the realty service contract after the owners' general meeting has made a decision to dismiss the realty service enterprise in accordance with the procedures stipulated in Article 76 of the Property Law, the people's court shall support it.

Where a property service enterprise claims property fees from the owners' committee, the people's court shall inform it to claim rights from the owners who are in arrears with property fees.

Interpretation: This article stipulates that as long as the owners' congress decides to dismiss the property company according to the procedures stipulated in Article 76 of the Property Law and Articles 8 and 9 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Disputes over the Ownership of Buildings (Fa Shi [2009] No.7), the owners' committee can directly sue and terminate the property service contract with the property company as the plaintiff.

It is worth noting that it is not clear whether there are legal reasons for termination, but it is clear that it was made in accordance with legal procedures. In my opinion, if the premature dismissal is unreasonable and causes losses to the property service enterprises, it should be compensated. Of course, the request of the property service enterprise to continue to perform is not supported.

The property management company can claim the property service fees owed by the owners from the relevant owners, but it cannot directly claim (counterclaim or defense) from the owners' committee.

Article 76 of the Property Law

The following matters shall be decided by the owners' meeting: …… (4) Selecting and dismissing the realty service enterprise or other managers; ..... To decide the matters specified in Items 5 and 6 of the preceding paragraph, it shall be approved by the owners whose exclusive parts account for more than two thirds of the total building area and more than two thirds of the total number of people. Decisions on other matters specified in the preceding paragraph shall be subject to the consent of the owners whose exclusive parts account for more than half of the total building area and more than half of the total number of people.

Article 11 of the Property Management Regulations is decided by the owner * * *:

(a) to formulate and amend the rules of procedure of the owners' congress;

(2) Formulating and amending management regulations;

(three) to elect the owners' committee or replace the members of the owners' committee;

(four) the selection and dismissal of property services companies;

(five) to raise and use special maintenance funds;

(six) the renovation of buildings and their ancillary facilities;

(seven) other major matters related to the management of * * * and * * *.

Twelfth owners' meeting can be in the form of collective discussion, but also in the form of written comments; However, there should be owners whose exclusive parts account for more than half of the total construction area and more than half of the total number of owners in the property management area.

The owner may entrust an agent to attend the meeting of the owners' congress.

The owners' meeting decides the matters specified in Item (5) and Item (6) of Article 11 of this Ordinance, which shall be agreed by the owners whose exclusive parts account for more than two-thirds of the total building area and more than two-thirds of the total number; Other matters stipulated in Article 11 of these regulations shall be decided by the owners whose exclusive parts account for more than half of the total building area and more than half of the total number of people.

The decisions of the owners' congress or the owners' committee are binding on the owners.

If the decision made by the owners' congress or the owners' committee infringes on the legitimate rights and interests of the owners, the infringed owners may request the people's court to revoke it.

Ninth after the termination of the rights and obligations of the realty service contract, the owners request the realty service enterprise to refund the property fees that have been received in advance but have not yet provided the realty service, and the people's court shall support it.

Where a realty service enterprise requires the owner to pay the property fee in arrears, it shall be handled in accordance with the provisions of Article 6 of this Interpretation.

Interpretation: It is not difficult to understand that prepaid services that have not actually occurred will be refunded, and services that have occurred but have not paid property fees should continue to be paid. It is worth adding that if the property service contract is terminated abnormally, causing losses to others, the party at fault shall be liable for compensation.

Article 10 After the termination of the rights and obligations of the realty service contract, if the owners' committee requests the realty service enterprise to withdraw from the realty service area and hand over the realty service premises and related facilities, as well as the relevant materials required for realty service and the special maintenance funds entrusted by it, the people's court shall support it.

After the termination of the rights and obligations of the property service contract, if the property service enterprise refuses to withdraw or hand over and requests the owner to pay the property fee on the grounds that there is a de facto property service relationship, the people's court will not support it.

Interpretation: From this article in Interpretation, it is meaningless for the "out" property service enterprises to adopt the "relying" method, which cannot form a de facto property service relationship, and may "lose their wives and lose their soldiers". Even if the property service enterprise has the strength of "entrenched", it is still recommended to "quit at the right time". After the termination of the realty service contract, the realty service enterprise shall timely hand over (completely hand over) and quit.

The background of this regulation is to "give a reassurance" to the property companies that refuse to hand over the house and quit, so as to prevent conflicts, casualties and other adverse events such as war.

Article 11 The provisions on realty service enterprises in this Interpretation shall apply to other managers as stipulated in Articles 76, 81 and 82 of the Property Law.

Interpretation: This article explains that other managers who provide property services to owners also apply the relevant provisions of this interpretation, except property service enterprises.

Relevant provisions of the Property Law

Article 76 The following matters shall be decided by the owners: ... (4) Selecting and appointing property service enterprises or other managers ...

Eighty-first owners can manage their own buildings and ancillary facilities, but also entrust property services companies or other managers to manage them. The owner has the right to replace the realty service enterprise or other managers selected by the construction unit according to law.

Article 82 A realty service enterprise or other manager shall, according to the entrustment of the owners, manage the buildings and their ancillary facilities within the building division, and accept the supervision of the owners.

Article 12 The people's court shall, with reference to the provisions of this Interpretation on the owners, handle disputes over property services caused by the lessee, borrower or other users of the property violating the property service contract and laws, regulations or management regulations.

Interpretation: Disputes over property services caused by non-owners' actual users' violation or breach of contract shall be handled with reference to relevant owners' statutes, that is, according to laws, regulations, management statutes, decisions made by owners' assembly or owners' committee according to law, and their agreements with owners, they shall assume obligations related to owners or enjoy corresponding rights.

Reference: Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Disputes over Differentiated Ownership of Buildings (Fa Shi [2009] No.7).

Article 16 Disputes over the ownership of buildings involving exclusive tenants, borrowers and other property users shall be handled with reference to this Interpretation.

Tenants, borrowers and other property users of the exclusive part shall enjoy corresponding rights and undertake corresponding obligations according to laws, regulations, management regulations, decisions made by the owners' assembly or owners' committee according to law and agreements with the owners.

Article 13 This Interpretation shall come into force on June, 2009 10.

This interpretation does not apply to cases that have been finalized before the implementation of this interpretation, and if the parties apply for retrial after the implementation of this interpretation or decide to retry in accordance with the trial supervision procedures.

Interpretation: (1) Cases concluded before 2009 10 are not applicable; (2) After the execution, the parties apply for retrial or the trial supervision procedure decides that the retrial case is not applicable.