Legal relationship between owners' committee and property management enterprises.

In recent years, the commercialization of housing and housing management has become an inevitable trend of economic development, which has produced many new contradictions and disputes. The number of cases of property management disputes that went to court increased significantly. The reason is that the legal relationship between property management enterprises and owners' committees in property management is unclear, and their respective rights and obligations are unclear. This paper makes some preliminary discussions on this issue.

Owners' Committee and property management enterprises

First, the status and role of the owners' committee and property management enterprises in property management.

Compared with the traditional property management carried out by the government or enterprises and institutions by administrative means in the planned economy era, property management, as a new management service system under the conditions of socialist market economy, is characterized by the combination of owner autonomy and self-discipline, and the unified professional management services of property management enterprises.

All owners have the right to possess, use, benefit and even dispose of the building, and the owners' committee is the permanent executive body within the owners' group. Elected by all members of the owners' group according to certain procedures, responsible for handling the daily affairs of the owners' group. Owners' committee is the premise and key for the majority of owners to realize autonomy and self-discipline. Property management enterprises are enterprises that provide unified professional management services for buildings.

Second, the legal relationship between the owners' committee and the property management enterprise

In practice, in the past, we mostly locked the legal relationship between owners, owners' committees and property management enterprises in "entrustment" or "principal-agent". In fact, this is a one-sided understanding caused by reading literature, which will do great harm to the healthy development of property management.

(a) the emergence and development of entrustment is due to the development of commodity economy, individuals are limited by time, energy and ability, can not do things by themselves, and have to hand over some things to others. The law confirms and adjusts this relationship, resulting in entrustment. This is consistent with the legal concept of the entrustment contract system established in Chapter 2 1 of China's contract law. Entrustment contract is one of the 15 famous contract types directly stipulated in the new contract law. Combined with the reality of property management, we will find that there are essential differences between entrustment contract and property management, which are embodied in the following aspects:

1. Contracts have different purposes. Article 396 of People's Republic of China (PRC) Contract Law clearly stipulates: "An entrustment contract is a contract in which the client and the trustee agree that the trustee will handle the client's affairs". This provision is the definition of the concept of entrustment contract by law. According to this law, the most important feature of the entrustment contract is to handle the affairs of the principal. The so-called client's affairs refer to the affairs that the client has an interest and has to do in person without entrustment. First of all, the management service of property management is not a transaction, and the essence of property management is the professional and technical paid service provided by property management enterprises as management service providers; Secondly, because property management has the characteristics of requiring specialized and technical services, it cannot be handled by the owners and the owners' committee. At the same time, for a large residential area, the number of owners may reach thousands. If every owner is directly engaged in the specific management services of property management, the order of the community may be chaotic, and eventually there will be a situation where everyone is in charge on the surface, but everyone is in charge in fact, but can't manage it. "

2. Article 399 of People's Republic of China (PRC) Contract Law clearly stipulates: "The trustee shall handle the entrusted affairs according to the instructions of the client." This essentially stipulates the obligations of the trustee. However, the management service of property management is not completely handled according to the instructions of the owners and the owners' committee. Property management enterprises shall, in accordance with the scope and projects agreed in the contract, follow the laws and regulations on property management and independently carry out the business activities of property management services. In the economic activities of property management services carried out by property management enterprises, owners and owners' committees only have the right of supervision, but have no right of interference and command. Property management companies have no loyal obligation to obey the instructions of owners and owners' committees.

3. The charging method of property management is different from the entrustment contract. As we all know, property management fees are generally paid by the owners or households on a monthly basis according to the provisions of the owners' convention and the property management contract. However, the expenses stipulated in the entrustment contract stipulate the expenses for handling affairs and the remuneration to the client respectively. The cost of handling affairs can be paid in advance, or it can be paid by the trustee and then repaid by the principal. For remuneration, it is paid after the completion of the entrusted affairs or entrusted for free. Obviously, this way of paying fees and remuneration is essentially different from property management fees.

4. According to Article 408 of People's Republic of China (PRC) Contract Law: "With the consent of the trustee, the trustor may entrust a third person other than the trustee to handle the entrusted affairs", and the entrustment contract may adopt repeated entrustment; Property management laws and regulations stipulate that property management enterprises can only entrust special business services to franchised enterprises, and may not hand over the overall management service responsibility to others.

5. Article 410 of People's Republic of China (PRC) Contract Law stipulates: "The principal or the trustee may terminate the entrustment contract at any time." That is, the law stipulates that both the client and the trustee have the right to terminate the contract. The entrustment relationship is based on the trust relationship between the parties. If one party's trust in the other party is shaken, regardless of objective reasons, the entrustment relationship should be allowed to be dissolved. Both parties can exercise the right to terminate the contract at any time. According to Item (5) of Article 94 of the People's Republic of China (PRC) Contract Law, they can notify the other party to claim to terminate the contract without the consent of the other party. As for whether the entrustment contract is paid or unpaid, fixed or not, or whether the transaction has come to an end, I don't ask. Obviously, the parties to a property management contract have no right to terminate the contract at any time. If one party proposes to terminate the contract within the term of the contract, it must negotiate according to the specific terms of the contract, and the court or arbitration institution will confirm the effectiveness of the termination.

From the quality differences in the above five aspects, it can be seen that the property management contract is far from the legal provisions of the People's Republic of China (PRC) Contract Law, which has obvious essential differences. Obviously, whether the property management contract is located in the scope of "entrusted contract" or the property management is located in the scope of "entrusted property management", it violates and misinterprets the legal concept of entrusted contract in the Contract Law. Of course, there are also entrustment behaviors in property management activities, such as entrusting franchise companies to provide special business services, and owners entrusting agents to attend owners' meetings and vote.

In the early stage of the development of property management, due to our lagging theoretical research on property management and unclear understanding, and the fact that the People's Republic of China (PRC) Contract Law has not yet been promulgated, the concept of entrustment contract is not clearly defined in law, and other limited factors, we mistakenly defined the property management contract as entrustment contract. If we still present the property management contract in the form of "property management entrustment contract" today, and once a contract dispute occurs and legal proceedings are conducted, then as a people's court, it is natural to use the People's Republic of China (PRC) Contract Law to review the legal provisions of the entrustment contract first. However, this Property Management Entrustment Contract is far from the legal provisions of the Entrustment Contract in People's Republic of China (PRC) Contract Law, and it does not meet the legal requirements for the establishment of the Entrustment Contract at all, which will inevitably mislead the judge to make the judgment that the Property Management Entrustment Contract is invalid, and will eventually cause great damage to the healthy development of the entire property management industry.

(2) Agency refers to the behavior and corresponding legal system implemented by an agent with a third party in the name of the principal within the scope of agency, and the legal effect directly belongs to the principal. As an independent civil legal system, agency is also the product of highly developed commodity economy. In Roman law during the period of simple commodity economy, there was no provision on agency. After the capitalist society, with the development of science and technology and the expansion of transactions, it is difficult for individuals to do things by themselves because of the limitations of knowledge, talent, time and health, so the demand for agents has arisen. The establishment of agency system in civil law has expanded the effective space-time scope of civil subject behavior. It has become an indispensable part of civil law.

The basis of agency relationship is agency right. The reason why the agent can perform legal acts instead of the principal is that the agent has the power of agency. The most fundamental core of agency behavior is that agency behavior must be limited to legal behavior, and there is no agency problem for behaviors that do not involve law; Secondly, it involves legal acts, but it does not need an agent. The principal can act directly and there is no agency problem. The result of agency behavior is "setting, changing and terminating civil legal relationship".

(The above answers were published on 20 13-05- 10. Please refer to the current actual purchase policy. )

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