New understanding of the legal attribute of property service contract

Property service contract is a civil contract that embodies all building management. This is a special service contract. Compared with other contracts, it has its own characteristics in many aspects, but scholars and judges have not paid corresponding attention to it in theory and practice. Due to the particularity of service content and service mode, the property service contract has many similar characteristics with other types of contracts, but it is absolutely different from the existing famous contracts in the contract law. As we all know, People's Republic of China (PRC) Contract Law promulgated by 1999 and other laws and regulations did not specify a specific name and set corresponding norms for the property service contract. For example, in the People's Republic of China (PRC) Contract Law, only sales contracts, electricity, water, gas and heat supply contracts, gift contracts, loan contracts, lease contracts and financing contracts are stipulated. The Property Management Regulations promulgated by the State Council in 2003 clearly put forward the concept of "property service contract". Before this, when it comes to the contracts signed between property managers, owners and users on property management activities, most of them are "property management contracts" or "property management entrustment contracts", and some of them are also called "property management service contracts". Therefore, the property service contract belongs to the nameless contract. This paper holds that the property service contract is a new type of anonymous contract, and its novelty is mainly reflected in three aspects: the contract subject, the payment obligation of the contract subject and the contract object.

(A) the subject matter of the contract is special

As far as the main body of the property service contract is concerned, the property service enterprise as the main body belongs to the emerging tertiary industry, operating independently and taking responsibility for its own profits and losses, and is an independent enterprise legal person. Property service enterprises can be divided into one, two and three levels according to the different scale of funds, professionals and entrusted property management. The other subject of the property service contract is the owners' group in the property management area, and the owners' group enters into a property service contract with the property service enterprise through its representative body, the owners' committee. Owners' committee is an organization representing owners' groups in the property management area, which is also an innovation in law.

(2) The rights and obligations of both parties to the contract are special.

The rights and obligations of both parties to the property service contract also contain new ideas. Its content and requirements are clearly stipulated in the property service contract, and the property service enterprise has the obligation to provide these services on time and with good quality. General public services are charged to all owners at the price confirmed in the contract.

Specific to the main payment obligations set in the property service contract, from the perspective of property managers, there are generally the following two aspects:

1. Property management refers to the management of the preservation, improvement, utilization and even disposal of buildings, bases and ancillary facilities. In principle, it is limited to some parts of the building.

2. People's management and service. People's management refers to the community management of the social life relationship of all people in the district/examination, and its object is limited to people living in buildings. The behavior of people entering and leaving the building should be included. The content is generally the management of improper damage to buildings, the management of improper use of buildings and the management of disturbing the order of life. [I]

Judging from the main payment obligations of property management relationship, the services provided by property management organizations are not only property management in a narrow sense, but also the maintenance and conservation of property facilities. Not only the purchase and replacement of mechanical facilities, but also the safety maintenance of living environment; It involves several well-known contracts and anonymous contracts, mainly including employment contracts, custody contracts, lease contracts, contracting contracts and entrustment contracts. In this regard, the nature of the property service contract should not be any type of well-known contract stipulated by the current law, nor should it be a simple so-called anonymous contract, but a new type of combined contract.

(C) the particularity of the subject matter and content of the realty service contract

According to the theory of differentiated ownership of buildings, the essence of property service is to distinguish the management of all buildings, and the object of management is mainly to distinguish all buildings. The objects of the property service contract also include: public order, environment, atmosphere, image, the behavior of the owner as the exclusive owner, the owner with rights and the members of the management team. It is a comprehensive professional service that integrates management and labor services provided by enterprises with relevant qualifications according to laws and agreements. Mainly includes: the use, management, maintenance and update of * * * pieces and * * equipment in the house; Management, maintenance and renewal of public facilities in the property management area; Operation services of elevators, pumps and other housing equipment; Cleaning and security services; Account management of property maintenance and renewal expenses; Preservation of property files; Repair and update the occupied parts and equipment of the house according to the contract.

(d) The realty service contract contains the trust relationship between the parties.

According to the contract with the owner, the property management company handles the management and maintenance of the building for the owner, and the expenses are provided by the owner, and the legal consequences of the management activities of the property management company are borne by the owner. This operation process of property management activities includes the entrustment of the owners and full trust in the management hardware and software of the property management company.

Therefore, in view of the particularity of the property management contract, it can be concluded that the property service contract is a new type of nameless contract.

To sum up, the author suggests that the property service contract should be typified (named) in legislation to meet the needs of trial practice. The history of contract law is the process of atypical contracts becoming typical contracts. [2] Therefore, it is suggested to stipulate it as a typical contract in legislation. This can not only save the cost of contracting, strengthen the protection of both parties, but also accurately apply the law when disputes occur, thus promoting the healthy development of property management enterprises in the direction of legalization.