Nature and treatment of disputes over property service contracts

On May 29th, 2007, Qiu Mou (Party A) signed a property management service contract with a property management company (Party B). Contract: Party A entrusts the public property management affairs of the community to Party B for a period of 50 years, and collects the public property management fee of 25 yuan every month; All motor vehicles and non-motor vehicles in the community enter the garage or park at designated places, and the monthly parking fee for each motorcycle is 15 yuan. The exemption clause stipulates that Party B shall not be liable for personal and property damage caused by a third party. In August 2007, Qiu bought a Xunlong motorcycle at a price of 3,280 yuan. On the evening of June 7, 2008, Qiu parked his motorcycle in the downstairs stairwell of Building C 1 where he lived and was stolen. Qiu believes that the theft of motorcycles is related to the property company's failure to fulfill its safety management obligations, and the company should be liable for compensation. The two parties failed to reach an agreement on compensation, so they appealed to the court on March 1 2008, demanding a property company to compensate for the loss of 3,280 yuan.

The court also found: 1. Although the service contract signed by both parties included the provision of parking spaces by the property management company and the payment of parking fees by the parking person on a monthly basis, the property management company did not charge parking fees or provide unified parking spaces to the community owners because the plaintiff and other owners of Yolanda Community did not apply for this parking service. 2. A property company set up a 24-hour doorman in the residential area where Qiu lived, and installed electronic surveillance videos on the main roads in the residential area.

[trial]

The court held that the "Property Management Service Contract" signed by the original and the defendant was the true intention of both parties and was a valid contract. According to the contract, the property management company undertakes the obligation of public property management and only provides preventive services for public order and public safety in the property management area. Judging from the facts found in the trial, a property company set up a 24-hour guard in the residential area under its management, and installed electronic surveillance videos on the main roads, which provided necessary preventive services for public order and public safety in the residential property management area, and both parties signed a contract and agreed on the exemption clause, that is, a property company did not intentionally or grossly neglect Qiu's motorcycle theft, and the exemption clause was effective. To sum up, Qiu, the plaintiff, could not provide effective evidence to prove that a property management company of the defendant failed to fulfill its obligation of public security prevention, and his claim that the company should bear the loss of motorcycle theft could not be established. The court ruled that the plaintiff Qiu's claim was rejected.

After the judgment, the plaintiff did not appeal, and the judgment became legally effective.

[analysis]

The property service contract is signed by the owner and the property company, not by the owners' committee and the property company. Generally speaking, there are as many property service contracts as there are owners in a community. Because each owner's situation is different, the content of the property service contract is not necessarily exactly the same. For example, some car owners have cars and some don't. It is obviously unreasonable for you to ask all car owners to pay vehicle management fees (or parking fees). For the content of public management services, the contracts signed by property management companies and all owners are consistent. For example, the following matters: 1, useful management of houses and maintenance of common parts of houses. 2, roads, street lamps, parking lots (garages), water supply, power supply, drainage, fire protection and other community public facilities and their operation and maintenance management, to ensure the normal operation of community public facilities and equipment. 3, residential appearance, greening, environmental protection, public security management and maintenance. 4. Cooperate with public security organs to maintain community public order. When the property company performs the above obligations, the owner shall pay the property management fee as agreed. For owners of private cars (including motorcycles), there is no doubt that owners need not only a parking space, but also someone to ensure its safety. For the owners, the property management company should be a candidate. In this way, the owner and the property management company can sign another contract or list additional terms in the public management service contract on providing parking spaces, ensuring the integrity of the car, service fees and other matters. For the additional terms, the property management company calls them special terms of service. This solves the different needs of different owners. Some special service contracts between owners and property management companies become contracts independently, and some are mixed with public management services, which are collectively called "property management service contracts". This case is a mixed contractual relationship between public affairs management service and personal vehicle safety guarantee responsibility.

Taking Qiu v. a property service contract dispute as a visual example, this paper discusses the following issues. The property service contract dispute referred to in this article refers to the dispute that the owner or the owners' committee takes the property service company as the defendant, thinks that it is at fault in the performance of the property service contract, or fails to perform the stipulations of the property service contract, thus causing personal and property damage to the owner, demanding compensation for losses, continuing to perform the contract, assuming the liability for breach of contract and terminating the contract. As for the dispute that the property company takes the owner as the defendant and demands to pay the property management fee, it is not discussed in this article.

1. How to define the dispute between the owner and the property management company in the performance of the property management service contract, and what imputation principle should be applied.

"Property Management Service Contract" or "Property Service Contract" is a typical two-service paid contract in which one party provides services and the other party pays remuneration. But it's not enough. Because the contract law stipulates that there are more than a dozen contracts for providing services with compensation, such as custody contracts, contracting contracts, brokerage contracts, intermediary contracts, entrustment contracts and so on. Therefore, it is not accurate to use "service contract" to characterize, and further analysis is needed to accurately apply the law and reasonably solve disputes. In practice, the main differences mainly focus on the following two aspects:

The first is the legal relationship between the owner's behavior of parking vehicles in the unified parking space of the community according to the service contract and the property management company.

There is a view that both parties establish a guardianship contract relationship, and the author disagrees with this view. The reason is that the obligation of the custodian is to properly keep the deposit delivered by the depositor and return it. The custodian shall perform the obligation of custody in supermarkets, long-distance bus stations, railway stations and other places that he can freely control. The custodian shall put the articles delivered by others in a specific area under his control, and others shall not move them at will. Car owners park their cars in their own parking spaces or garages. First, they don't need to hand over the car to the property management company. Second, the car does not need the approval of the property company. In a sense, just like putting things in your own home, you can take them in and out freely. Parking spaces or garages are entirely up to the owner. At this point, it is completely inconsistent with the fundamental legal characteristics of the custody contract relationship. "Property management companies not only have the obligation to ensure the safety of vehicles, but also the property and people of all owners", which is embodied in the property management service contract signed by both parties and is one of the public services that property management companies should undertake. But we can't think that the property management company has the obligation to keep the owner's house and other household items, let alone the owner's personal property. Therefore, the property management service contract between the property management company and the owner cannot be regarded as a custody contract, especially for parking vehicles in the community. For property management companies, it is not possible to ask them to assume custody responsibility by custody contract relationship. Because the security obligation cannot be equated with the guardianship obligation. From another point of view, the obligation of vehicle safety guarantee is not independent of the whole property management service. Owners generally believe that it is only one of the services of the property management company, and do not think that there is a vehicle or other property custody contract with the property management company.

There is also a view that the two sides form a parking space lease contract. The so-called parking space lease contract refers to the contract that the owner or user of the parking space gives the parking space to the lessee for use and the lessee pays the rent. This is often used by property companies to defend the view of owners that they charge parking space rental fees, not vehicle storage fees or service fees. The two parties agree to point to the parking space instead of the owner's vehicle, and their obligation is to provide the parking space that meets the normal use of the owner, and they are not responsible for the safety of the vehicle. I think this view is wrong. The reason is: 1. It is not the owner's intention to get a parking space just for parking. If so, isn't it easy to find a parking space in a large community? Car owners need more standardized parking to ensure the convenient passage and safety of vehicles. This must be specifically for this purpose. 2. The owners of public parking spaces in the community are all owners, not property companies. Isn't it a waste that owners have to pay others for parking in all their parking spaces? Why do property companies charge rent? Does not meet the basic legal characteristics of the lease contract. Therefore, the parking fee charged by the property company to the owner can only be interpreted as the service fee charged for regulating parking and ensuring vehicle safety.

The author believes that, in general, the property service contract is a kind of entrustment contract. After the implementation of the Property Law, everyone has a new understanding of the property in the community. The public property of the community is not owned by the property company, but by all the owners. The property management company is only responsible for management. The owner entrusts all his properties to the property management company for management, and the owner pays the remuneration as agreed. Owners generally entrust public facilities, greening, sanitation, security and other public affairs in the community, and especially entrust owners with vehicles in the community to park their vehicles. Therefore, from the analysis of the contents, subjects, rights and obligations of the contract signed by both parties, it conforms to the provisions of the Contract Law on entrustment contracts. The property company is also the obligation of the trustee.

To sum up, the nature of Qiu's contract with a property company should be entrusted contract.

Second, what kind of imputation principle should be applied.

There is a dispute between the owner and the property management company in the performance of the property service contract. When the owners claim compensation from the property management company, some people claim that the property management company should bear the liability for breach of contract, others claim that it should bear the liability for fault, and others think that the property management company should only bear the liability for intentional or gross negligence.

After determining the nature of the property service contract, it is clear what responsibility the operation trustee-the property company should bear. Because Article 406 of the Contract Law stipulates that if the paid entrustment contract causes losses to the client due to the fault of the agent, the client may demand compensation for the losses. It can be seen that for property companies, this is fault liability, not intentional or gross negligence liability. Paragraph 2 of Article 36 of the Property Management Regulations stipulates that if a property service enterprise fails to fulfill the stipulations of the property service contract, causing personal and property safety damage to the owner, it shall bear corresponding legal responsibilities according to law. From this perspective, the property company is also liable for breach of contract. How to apply these two kinds of responsibilities, I think it should be decided according to different situations, combined with trial practice, the analysis is as follows:

The property management company shall undertake the obligation of safety guarantee for the vehicles, the owner's personal and the owner's household goods in the parking space of the community. This obligation is based on the agreement between the owner and the property management company in the management service contract, which is a desirable behavior and one of the contents of entrusted service. Every owner's personal and property safety responsibility is a collection, which forms the property company's security obligation for the whole community. As the object entrusted by the owner, it is the security obligation of the community, not the owner's person and property. The specific content of the security obligation can be roughly summarized as follows: in order to maintain the order of the community and ensure that the owner's personal and property are not infringed, the property management company is on duty, guarding and patrolling. And equipped with related facilities. By fulfilling the above obligations, we can stop illegal infringement, prevent fire and theft, and eliminate potential safety hazards. In the foreseeable circumstances, and to a certain extent, realize the safe living environment that the owners want.

In the trial debate of this case, the defendant argued that he was responsible for the management of public property and did not accept the entrustment of personal items such as motorcycles, so he should not bear the responsibility. The court also held that the original and the defendant agreed in the contract that a property company should undertake the obligation of public property management and only provide preventive services for public order and public safety in the property management area. The implication is that the property management company is not responsible for any personal injury or property loss in the owner's home. Obviously, this conclusion is wrong. I would like to ask, if there are frequent cases of burglary and robbery by criminals in a residential area, can the property management company argue that it "undertakes the obligation of public property management, does not accept the entrustment of personal belongings and should not bear the responsibility"? Can the court also reject the victim's claim on the grounds of "only providing preventive services for public order and public safety in the property management area"? The author believes that it is wrong for a property management company to completely separate the public management service object from the owner's personal and personal belongings. The object of public management service is the collection of personal and personal property safety obligations of all owners in the community. For example, the safety of the community is not only reflected in public places, but also in the feelings of each owner in his own home. However, when property management companies perform entrusted management functions, their responsibilities vary greatly. In public places, based on the general entrustment of the owners, they can freely exercise the rights of management and service, with great rights and greater duty of care; For personal injury and property theft in the owner's private residence, because the private residence is a closed private place, without the special authorization of the owner, it can't go in and out at will in the name of performing services, and its duty of care is relatively small. Therefore, in the application of the principle of liability, the property management company should not only prove that it has fully fulfilled its obligations according to the service contract, but also prove that it is not at fault for the owner's injury or damage in the public places of the community; If personal injury or property loss occurs in the owner's home, the property management company can be exempted as long as it proves that it has fully fulfilled the duty of care stipulated in the service contract.

Looking back, look at the dispute between Qiu and a property management company. Because the nature of the contract is not clear, it is incorrect in the principle of applicable law and liability.

Two, the burden of proof in the property service contract dispute and its handling.

"Who advocates who gives evidence" is a general principle. Article 4 of the Provisions of the People's Court on Evidence in Civil Litigation lists eight cases in which the burden of proof is reversed, but there is no provision on disputes over property service contracts. But in fact, it is difficult for the owner to bear the burden of proof that the property company is at fault or has not fully fulfilled its contractual obligations during the performance. In written law countries, legal norms are always slower than the changes in real life, because of technical problems in legislation, defects are inevitable. "The disciples can't do it themselves." When the legal norms are not refined and individual justice cannot be realized, it is necessary for judges to use them flexibly in trial practice according to the basic principles of litigation. For such disputes, the judge should reasonably allocate the burden of proof, and should not mechanically administer justice and handle cases rigidly. There are two main situations:

1, the most common occurrence is that the owner's vehicle is stolen in the community. As a car owner, when choosing a house, we should consider having a place to park and be safe. Most of the property service enterprises in China are subsidiaries of real estate development companies, and they also have unified parking spaces or garages when planning and designing. When the owner parks his car in a designated parking space or garage, it shall be deemed as entrusting the car to a property management company to ensure its safety. In case of theft, the owner shall bear the burden of proof for the following matters: (1) the fact that the car is parked in the parking space or garage; (2) It has fulfilled its due preventive obligations, such as the integrity of door locks and alarm devices; (3) the value of the vehicle. As a property company, the burden of proof is to prove that as a kind service person, he has fulfilled his duty of care. Generally speaking, the burden of proof that property management companies should bear is: (1) the overall situation of community security. The overall situation is good, which can prove that the property company is not at fault in fulfilling its security obligations. If the overall situation is not good, as mentioned above, frequent fighting and theft can be determined that the property company is at fault. (2) Whether various systems are sound and implemented. (3) Necessary facilities, measures and relevant personnel. For example, whether the passage between the community and the outside world is set with a guard and a duty record, which is mainly used to prove that someone is on duty. From common sense, it is impossible to ask the doorman to register everyone who enters and exits. (4) Whether the preventive measures set around the main passage, unified parking space or garage are in line with the contract, such as night patrol, electronic monitoring facilities, separate duty room and personnel on duty, etc. The degree of prevention should be equal to the service fee paid by the owner. Just as you can't ask luxury hotels and general guest houses to pay attention to the personal and property safety of guests, the obligation is the same.

As far as this case is concerned, Qiu should realize that the motorcycle itself has the worst anti-theft ability, instead of applying to the property company for a parking space, which led to the motorcycle being stolen. The main fault lies in Qiu. Since Qiu's motorcycle was not stolen in a unified parking space, the property management company should not bear the responsibility as long as it proves that it has fully fulfilled its duty of care stipulated in the property management service contract. The court held that the exemption clause of "Party B is not liable for personal and property damage caused by a third party" was effective, exempting the property management company from the responsibility, and it was also an error in applying the law.

2. Burglary and robbery occurred in the community, causing personal injury and property loss to the owner. This situation often involves criminal offences. Due to the concealment, suddenness and unpredictability of criminal acts, the security obligations of property companies should not exceed the scope that can be foreseen when signing contracts with owners. Therefore, when the owner is injured at home or his property is stolen or robbed, the property management company should generally prove that it has fulfilled the security obligations stipulated in the contract from the following aspects: (1) Property service enterprise qualification; (two) personnel engaged in security services have professional qualifications in accordance with the relevant provisions of the state; (3) A sound security service system; (4) Records or certificates of performing the duty of care according to the system, such as duty logs and major accident report records; (five) measures to fulfill safety obligations, equipped facilities and necessary publicity.

If the owner's house is stolen, the owner asks the property company to compensate and bear the responsibility. It is difficult to win compensation through litigation, and so are known cases. First, it is not difficult for the property company to prove that it has fulfilled the duty of care agreed in the contract, while it is basically impossible for the owner to claim that the property company has not fulfilled the duty of care agreed in the contract. Secondly, it is very difficult to prove the type and specific quantity of stolen property.

Three, the owner is not at fault, and the property company is not at fault.

In many cases, the vehicles in the community were stolen, the owners were injured, and the property at home was stolen and robbed. In many cases, the owner himself is not at fault, and the property management company can prove that it has fully fulfilled its duty of care in accordance with the contract, and there is no obvious fault. At this time, it is difficult for the owner to win the case and ask the property company for compensation. The author believes that the court cannot simply dismiss this matter, but should do more legal publicity and mediation to achieve the purpose of the owner withdrawing the lawsuit or mediation between the two parties. Whether the property management company can not charge or charge less property service fees; For the owner, "the benefit belongs to the owner and the loss belongs to the owner", that is, the risk of property loss is borne by the owner himself, which is a principle generally observed in civil law. In this case, the compensation for the owner's personal and property damage can only be expected to be detected in the criminal case.