What is the relationship between social system and property management?

Property management is a new economic activity and a new industry in China. Its emergence and development have two social foundations. First, with the gradual deepening of the reform of urban housing system, the proportion of housing owned by individuals is increasing, and there is coordination of property interests between housing maintenance and adjacent housing, which calls for socialized and professional services; Second, the living standard is constantly improving, and the various consumer demands around residence are increasing sharply, calling for new forms of consumer services. The development of property management has played a very positive role in improving the living and production environment of residents, improving the quality of life derived from residents' residence, meeting the housing consumption demand after individuals own housing ownership, and coordinating the interests of housing owners in public space.

In the development of property management, various social contradictions have gradually emerged. These contradictions highlight the imperfection of the rules. As a new type of economic activity, property management cannot be born with a set of code of conduct recognized by all parties, so it faces the blank of rules in its early development. However, rules can't be invented out of thin air. They can only be built continuously in the process of revealing the contradictions in the "game" and can only be agreed continuously in the process of balancing the interests of all parties in economic activities. Most of the rules of economic activities are naturally formed and established, and become the rules that * * * abides by. However, when economic activities have external effects and involve public interests, or the interests of various stakeholders in economic activities cannot be balanced by themselves, it is necessary for the government to formulate rules to make the order of economic activities conform to the overall interests of society or benefit most people. The contradictions in the practice of property management are partly the manifestation of the change of rules in the process of the natural formation of new economic activities, and partly the manifestation of the difficulty for market participants to achieve a balance of interests.

Correctly analyzing and understanding various legal relations in property management activities is not only the basis for creating rules, but also the basis for correctly distinguishing the characteristics of rules, thus establishing corresponding legal systems.

First, is property management service or "management"?

Why does the economic activity of property management come into being? This problem involves not only the legal relationship between the owners and the property management enterprises, but also the purpose of legislation. China's property management, in terms of its form, draws lessons from Hongkong's practice. However, in the early stage of its development, there has been a considerable change from the management of public houses by housing management departments to the awareness of exercising management rights to different property owners, so the "management" characteristics of property management are often emphasized. Management is a restriction on the behavior of the managed. In the property management activities, does it reflect the real significance of this management? Is the relationship between the property management enterprise and the owner the relationship between the manager and the managed? Property management enterprise is an enterprise legal person, which does not have public rights and public affairs management functions, and its management of owners cannot be established in law. For the independent private affairs of the owners, the legal relationship between the property management enterprises and the services entrusted by them is relatively clear. What is easy to confuse is the "management" of public parts, public facilities and public environment implemented by property management enterprises. Where does this "management power" come from?

The basic motivation of property management economic activities is the owner's demand for property services, which should never and cannot come from any external "arrangement". Although the content of property management includes non-absolute private services, such services are neither provided by property enterprises on their own initiative nor beyond the wishes of owners. Therefore, even if it is customary to call property management "management", the source of this management comes from the balanced needs of owners based on interests. If a property management enterprise takes the initiative to implement certain management for the public interest, it cannot but be understood as fulfilling certain social obligations in legal relations. The "management" of public parts, public facilities and public environment by property management enterprises is also based on the needs of owners' interests, and its "management right" comes from owners' property. Without the participation of owners, the property management behavior of property management enterprises cannot be established. Therefore, the essence of property management economic activities is that owners hire property management companies to provide services.

The formation of the relationship between property management and economic activities, whether it is the specific private services directly provided by property management enterprises to owners or the "management" group services provided to many owners, is essentially the combination of the service needs of owners and the services provided by property management enterprises, and the relationship between owners and property management enterprises is the relationship between the served and the service providers. According to the convention, property management is called "management", which does not refer to the "management" function of property management enterprises, but reflects the owner's right to manage his own property. Hiring a property management company to manage the property is just one of the ways for the owners to exercise their property rights.

The legal relationship between owners and property management enterprises, service demand and service provision is based on the property service contract. The property management enterprise accepts the entrustment of the owner and provides services according to the contract. The services provided by property management companies are aimed at property owners, and the carrier of their service activities is the property, as well as the public space and related property formed by the property. Based on the matters agreed in the contract, the property management enterprise forms an exchange relationship between services and remuneration with the owners, provides services within the agreed scope, assumes responsibilities and obtains remuneration.

Two, the identity of the legal system of property management of different types of property

As far as its quantity is concerned, the object of property management services is mostly the owners of residential properties, and the contribution of property management development to economic and social development is mainly in the field of residential properties, but the field of property management services has actually penetrated into non-residential properties, such as office buildings, industrial areas, schools and even hospitals.

Property management of residential property and non-residential property have different characteristics. These different characteristics are mainly manifested in four aspects. First, in the property management of residential property, property management enterprises are faced with a large number of service demanders, that is, providing services to many owners and having economic relations with many owners. In the property management of non-residential property, property management enterprises generally only face a single owner and have economic relations with the single owner. Compared with the property management of non-residential property, the legal relationship of service is more complicated. Second, the facilities and equipment of residential property have universal applicability; The facilities and equipment of non-residential property are related to the functional characteristics of the property and the special needs of the owners, which has particularity. Compared with the property management of non-residential property, the property management of residential property has fewer special technical requirements. Third, the property management of residential property, because the service object is many owners, their interests are relatively independent and interrelated, and there is a balance and maintenance of the interests of relevant owners. Rather than the property management of non-residential property, the service object is a single owner, and the interests of the service object are independent, direct and irrelevant. Fourth, the property management of residential property, the service directly faces the service demanders and provides terminal services, and consumers directly benefit from the services provided by property management enterprises; Property management of non-residential property, because its property itself provides other services, property management is the intermediate link of its service and an integral part of its final service, and the final consumers indirectly benefit from the services provided by property management enterprises.

However, these differences do not constitute differences in the rules of property management activities. First of all, the property management of residential property or non-residential property is a service contract relationship between the owner and the property management enterprise, and its legal relationship is also formed in this way.

Secondly, the difference between residential property and non-residential property in the implementation of property management mainly lies in the different service content, which is the content that the contract should regulate, not the content of the legal system.

Third, some non-residential properties also exist in the form of multi-owners, and the interest coordination mechanism and negotiation mechanism between owners are similar to those of residential properties.

Fourthly, the rules created for all kinds of behaviors in property management economic activities, such as early property management, establishment of service contract relationship, use and maintenance of property, are common to all kinds of properties. Based on these considerations, it is not necessary to distinguish between residential property and non-residential property in the design of property management legal system.

Third, the legal relationship between the owners' congress and the owners' committee.

The owner's right to his house includes the sole ownership of the house whose boundaries can be defined, the joint ownership of the house whose boundaries cannot be defined separately, the joint ownership of the facilities and the joint use right of the land. When the owner owns the ownership of the building, the boundary between the sole ownership of the building and the sole right to use the land is certain, but under certain circumstances, there may still be joint ownership of the facility. Houses owned by urban residents in China are basically collective, and it is very common that public space, facilities and land have the same ownership and use rights. The existence of this situation also determines that the exercise of ownership by the owner will affect the rights of the relevant owners and be restricted by the rights of the adjacent owners.

* * * having property and * * * having interests are the basis of the owner's relationship. The coordination of interests among multiple owners in a building has been regulated by a relatively mature legal system-building ownership system abroad, but there is no mature legal system for the interests among multiple owners in several buildings. This is a difficult problem when drafting the Property Management Regulations (hereinafter referred to as the Regulations). First, the establishment of this system has neither precedent nor practical basis; Second, this issue belongs to the basic civil system, and it is a question of legal adjustment according to the provisions of the Legislative Law, and administrative regulations have no right to make provisions on it. In view of this, the regulations only stipulate the form of the owner's will, the establishment of the owner's will and the binding force of the owner's will on a single owner.

Once the owner passed the resolution of * * *, he entrusted all his properties to a property management company to implement property management, which not only put the management of * * * together with the property, but also put the management of some purely private properties in the overall * * * contract. This kind of contract should not only reflect the interests of a single owner, but also realize the balance between the interests of a single owner and the interests of multiple owners. When the owner joined this contract, he inevitably promised to abide by the principle that the minority is subordinate to the majority, and obey the will of the majority when the individual will is inconsistent with the will of the majority. The owners' meeting is composed of all owners whose property and interests are related. It is an organizational form to express owners' wishes and realize the balance of owners' interests, and its basic rules of procedure are democratic consultation. As a form of reaching an agreement through democratic consultation, voting is an effective way. At the owners' meeting, all owners are equal. However, what standards are used to achieve this equality? Aristotle discussed equality as two criteria: quantitative equality and value-based equality. What standard should the democratic consultation mechanism of the owners' meeting adopt? If the equality standard based on value is adopted, that is, the property value unit owned by the owner is used as the voting benchmark value, the owners with large housing area also have more voting rights, which formally maintains the equality in the organizational structure of property connection and property right combination, but the single property identification standard will inevitably tilt the lever of the interest balance mechanism to the rich, and the interests of the owners who are majority in number but minority in property ratio may not be reflected. If the standard of quantity equality is adopted, that is, the absolute owner unit is taken as the benchmark value for voting, the equality between owners will be maintained from the perspective of actors. However, the combination of owners' congress is linked to property management after all. Based on a single owner unit, property rights can be completely abandoned, which will damage the property rights of some owners. In the system design of the regulations, based on the principle of property management by the owners themselves and democratic consultation, the owners stipulate the determination method of voting rights in the rules of procedure of the owners' meeting; However, through the rules of procedure of the owners' congress itself, it is necessary to clarify the standard of voting rights, which leads to the problem of the way to establish the initial rules. Therefore, the regulations stipulate that when the first owners' meeting determines the rules of procedure of the owners' meeting, the voting rights should be determined according to the factors such as the building area of the property owned by the owners and the number of residential units, so as to combine the equality of quantity with the equality of value. Under this basic rule of procedure, according to the principle that the minority is subordinate to the majority, the general decisions of the owners' congress need to be passed by more than half of the majority; Major decisions need to be passed by more than two-thirds majority; All owners shall abide by the decisions of the owners' meeting agreed by the majority of owners.

The owners' congress has determined the procedure of democratic deliberation of owners, but it does not have the function of implementation itself. The transformation from abstract decision-making to concrete implementation needs a permanent organization to complete. The problem in practice is that due to the large number of owners, it is impossible to hold owners' meetings frequently, and it is impossible to discuss everything at owners' meetings. Some owners' committees have replaced the owners' meeting, and some owners' committees have actually surpassed the owners' meeting and imposed it on all owners with the will of a few people, which is also the root cause of disputes among owners in some residential areas. Therefore, the system design in the drafting of the regulations clearly stipulates that the owners' committee is the executive body of the owners' congress, not the decision-making body, and the owners' committee has no right to make decisions on matters involving the interests of owners.