Legal issues involved in urban heating?

After the heating system reform in some northern cities stopped welfare heating and individuals paid the heating fee directly, how to pay the heating fee became a hot topic for discussion.

First of all, about the economy and policy of heating.

As a public service, heating is an indispensable and important demand in people's daily life. In recent years, a considerable number of heat users have seriously defaulted on heating fees, which has become the main problem of winter heating in northern China. With the gradual implementation of socialized production and commercial supply of urban heating, laws and regulations regulating heating and heat use have not yet been promulgated, which makes urban heating more and more prominent its dislocation with the times. The Regulation on the Administration of Boiler Heating for Residents in Beijing adjusted the heating relationship for the first time, which came into being during the transition from planned economy to market economy. At that time, the urban housing reform was not fully carried out, and most of the houses were public houses. According to relevant regulations, the heating cost shall be borne by the unit in principle, unless the heater has no unit. Now housing has been basically privatized, but there is no new standard for heating. In addition, how to produce, circulate and consume the "heating" of service social welfare as a commodity under the guidance of the government, how to set a reasonable heat price and how to charge according to heat metering need to be solved. In addition, due to the particularity of the heating contract itself, it is not in harmony with the relevant provisions of the Contract Law. Specifically, the current heating contract dispute cases have the following characteristics:

(1) There are many reasons for defaulting on heating fees.

One is that the user unit signed an agreement with the heating party to pay the heating fee, and the unit's poor efficiency led to the accumulated arrears of heating fees; Some workers bought the property right of the unit house, but did not inform the heating unit to change the heating contract in time, resulting in the phenomenon that the heating workers did not know the payment, and the unit mistakenly thought that the workers paid the fee, while the heating unit waited for the heating unit to pay the fee; Some employees left the original unit, but did not change the heating contract in time, which also caused the phenomenon of supply interruption, leading to years of arrears in heating costs.

(B) heating contract disputes difficult to prove

It is difficult to prove the quality and standard of heating, especially after the heating period. According to the principle of "whoever advocates gives evidence" in the Civil Procedure Law, in civil litigation, the party who makes a claim should give evidence to prove his claim, otherwise it will bear the consequences of not giving evidence or even losing the case.

(C) heating enterprises have no autonomy

According to the government's requirements for public welfare undertakings, heating enterprises cannot enjoy the freedom to raise prices or stop selling at will like other commodity producers, and it is difficult to bear the investment cost of reforming heating systems and control the government's heating price plan. Especially for buildings built in the decades after the founding of the People's Republic of China, the problems of energy saving and metering are not considered at all when designing the heating system. The heating system itself has inherent defects and does not have the ability of heat metering, environmental protection and heat regulation. In addition, both new and old systems need to be equipped with necessary equipment, and at the same time, the water quality of heating system also has higher requirements. Therefore, it is necessary to increase investment, resulting in an increase in heating costs. However, according to the government's requirements for public welfare undertakings, heating enterprises cannot enjoy the freedom to raise prices or stop selling at will like other commodity producers. Secondly, the heating charging mechanism is not perfect, and there is no relevant law to punish those who do not pay. Since "heat" is a commodity, its value should be reflected by price. Central heating has a relative monopoly on thousands of households within the same border and cannot be circulated and traded in the market like ordinary commodities. So "heat" is a special commodity. Accordingly, when setting the heating price, on the one hand, we should fully calculate the economy of heating, on the other hand, we should fully consider the policy of heating, otherwise, not only metered heating will not be popularized, but also social instability will be caused.

(D) heating arrears disputes rose sharply.

Taking Xuanwu District Court as an example, it accepted 167 cases in 2002, 2 12 cases in 2003 and 1506 cases in 2004. Judging from the absolute number of such cases accepted, it grows at a rate of 400% every year, which is the most remarkable type of civil cases. Judging from the proportion of such cases in civil cases in this hospital, it rose from zero in 5438+0 in 2006 to nearly 10% in 2004. It can be seen that the emergence of a large number of heating disputes has become an inevitable trend in the future.

(five) the characteristics of the subject of litigation

Judging from the 167 case accepted in 2002, most of the plaintiffs were heating centers and some property management companies. By 2004, the plaintiff showed a diversified trend, and heating units gradually became the main form of plaintiff's prosecution. However, it is extremely rare for the plaintiff to accept the heating service.

(6) the defendant's subject is diversified.

Since 196 1 Interim Provisions of Beijing Real Estate Administration on Winter Heating Charge, Beijing has continued the principle that the heating cost is borne by the unit. Results the heating party only signed a heating agreement with the unit where the employee worked, so the case with the unit as the defendant was dominant. Especially in state-owned enterprises and institutions. With the continuous advancement of urban housing reform, coupled with the increase of commercial housing that individuals pay for heating, the welfare heating treatment enjoyed by a group of workers is changing, and the cases of individual lawsuits are also on the rise year by year. In these cases with individuals as defendants, most of the defendants are laid-off workers, unemployed people and other low-income people.

Second, the reasons for the above characteristics of the case

(A) the traditional heating agreement is incompatible with the Contract Law.

The heating system in China was established as a welfare undertaking in the planned economy era, when all the heating costs were borne by the government. With the gradual deepening of economic system reform, a series of changes have taken place in the heating system. According to the "Regulations on the Administration of Boiler Heating for Residents in Beijing" issued by 1994, the government's heating expenditure is no longer centralized, but is borne by the unit where the heating users work. If there is no work unit, it shall be borne by the heating user personally. However, after the promulgation and implementation of the contract law, the heating system is difficult to meet the requirements of the development of the contract law, and many places that are incompatible with the legal norms are gradually highlighted. The specific performance is as follows: (1) It is not free to sign a heating agreement. At present, the status quo of heating agreement signing is that the unit that pays for individual heating users is not voluntary, but mandatory by the municipal government. (2) restrictions on the performance of the heating agreement. The Regulations of Beijing Municipality on the Administration of Residential Boiler Heating stipulates that if the heating user refuses to pay the heating fee without justifiable reasons, the real estate management authority may order him to pay it within a time limit. If the circumstances are serious and refuse to pay, the heating unit may stop heating with the approval of the real estate management authority. It can be seen that the exercise of rights by heating units is restricted by administrative regulations. Even if the heating user has "serious circumstances and refuses to pay the fee", it must be approved by the real estate management authority. Judging from the current social environment, considering social stability, it is difficult for real estate management departments to approve heating units to stop heating. Therefore, in view of the fact that heating users are in arrears with heating fees, heating units can only continue to perform their contractual obligations, which is obviously inconsistent with the original intention of legislation. (3) The rights and obligations of the heating agreement are not equal. Technically speaking, heating is the whole heating, but when the heating party owes money, the heating party cannot stop heating individual users.

(2) The behavior of one party as a hot user.

1. Disputes caused by heat users' inability to pay for heating. Some heat-consuming enterprises are in recession, and the benefits are not good. Even the basic salary of employees is difficult to pay, let alone the heating fee for employees. However, when faced with the inability of the unit to pay, the traditional mechanism of payment by the employee's unit shows many disadvantages, which makes the dispute expand.

2. Disputes caused by the user's failure to change the heating agreement in time. There are two main situations. (1) With the reform of the public housing system, some heat users have also reformed the way they bear the heating costs. The heating unit and the employee agree that the employee will bear part of the heating cost, or the heating cost will be paid directly to the individual employee, who will pay the heating cost directly, and the unit will no longer bear the cost. However, heat users have not changed the terms of the original heating agreement accordingly, so that they are still a party to the heating agreement and bear the obligation to pay fees. (2) After the employees were transferred from their units or dismissed, the units that paid the heating fees failed to change or cancel the heating fee payment clauses in the heating contract with the employees in time. When the heating units charged the heating fees, the employees' original units were to blame, resulting in disputes over the commitment of the heating fees.

(three) as a heating unit behavior

1. Disputes caused by unqualified heating quality. If the indoor temperature of the household is not up to standard, it can not meet the temperature standard and time standard stipulated by the state. However, because the heating users did not claim their rights in time or did not take effective measures to solve the defects, they could not cite any evidence in the lawsuit, so they could not obtain the court's determination.

2. Enhance the legal awareness of hot users.

With the implementation of the strategy of governing the country according to law, more and more social relations have been brought into the scope of legal adjustment, and the legal awareness of citizens, legal persons and other organizations has been continuously enhanced. Heating units are no exception. On the other hand, in recent years, due to the continuous rise of energy prices, it has also brought a heavy burden to the operation of heating units. Although the heating fee approved by the price bureau is gradually increasing, there are still a large number of heating users who refuse to pay the heating fee, which makes the heating unit struggling, thus making a large number of cases of claiming heating fee by litigation constantly emerge.

Three, the current heating dispute trial problems and countermeasures

(a) heating users should actively provide evidence.

Because heat is conductive, we should pay attention to obtaining evidence on the temperature issue, such as asking the notary office to identify the temperature, the time of low-temperature preservation, and investigating the cause of the problem.

(2) How to determine the undertaker of the heating fee is the first thing that the court should make clear when solving the heating contract dispute.

According to the relevant provisions of "Beijing Residential Boiler Heating Management Regulations", the heating cost shall be borne by the unit in principle, unless the heater has no unit. However, in today's form of housing privatization, there is no new norm to adjust the heating cost burden of individual private housing. In this case, the defendant principle can be determined according to the provisions of "Several Opinions of Beijing Higher People's Court on Cases of Recovering Heating Fees", that is, the subject matter of the contract shall prevail, supplemented by the unit where the heating individual works or the individual without a unit. In the trial practice, a large part of heating contracts were not signed. Although the two parties did not sign the contract according to the relevant provisions of the Contract Law, one party has fulfilled its contractual obligations and the other party has accepted it, and the contract is also established. But for a long time, heating costs are paid by the unit on behalf of employees, which makes some heating units sue individual employees first. These workers protested on the grounds that the heating cost should be borne by the unit, so the defendant was not qualified, and the heating unit could only withdraw the lawsuit first and then sue the unit. In addition, although the Beijing Higher People's Court has clearly defined the defendant's subject, due to the coexistence of government regulations, the heating party has multiple choices when choosing the litigation subject, and the result is wrong. Judging from the trial of cases in recent years, cases of withdrawal account for a considerable proportion. In view of the above situation, the author thinks that we should gradually unify the relevant legal provisions, improve the legal provisions on the subject of litigation, avoid misleading the parties and avoid unnecessary disputes.

(3) Equality of rights and obligations in heating contracts

Heating technology is integral heating. When the heating party is in arrears, it is difficult for the heating party to exercise the uneasy defense right of the general civil contract subject and to stop heating to ensure the overall heating. Therefore, the heating contract has the characteristics of public service, administrative coercion and compulsory performance, which are different from other civil contracts. It is precisely because of the above-mentioned particularity of the heating unit that when the heating party refuses to pay all the money, the court should not support it. Therefore, the author believes that under the condition that the existing heating system and policies and regulations have not changed, the heating unit should take a positive form to sign a heating contract with the heating party, and clarify the rights and obligations of both parties, especially the heating party should pay the heating fee in full to avoid any legal basis when disputes arise. In addition, in legislation, we should further improve the provisions of the heating contract, and make more specific, clear and feasible legal provisions on the rights and obligations in the heating contract in view of its particularity, so that the handling of heating disputes can be completely brought into the legal track.

(four) the change and termination of the heating contract

1. Change of heating contract terms. Heating is a public welfare undertaking, and the heat supply contract usually carries out government pricing. However, in many heating agreements, there is no heating price standard, but the actual price at that time is implemented. However, with the change of price index and heating mode, the unchangeable price standard obviously cannot support the normal operation of heating units. When the government price is raised, the heating party often fails to inform the heating party of the price change in time, so the heating party refuses to perform the price difference. Therefore, the author suggests that after the heating price is adjusted, the heating unit should inform the heating party in time and actively change the original contract with the heating party on the new price.

2. Termination of heating contract. In most heating agreements, heating units directly sign heating agreements with employees. However, the actual heating person left his unit due to resignation, enterprise diversion and other reasons, and his unit failed to inform the heating unit to terminate the heating contract in time, resulting in several years of arrears in the heating fee under the name of the original actual heating person. In this case, on the one hand, the heating agreement has not been terminated, on the other hand, the party paying the heating fee is not the actual heating person. Therefore, when going to court, both sides will hold their own words. If the heating party thinks that the heating agreement has not been lifted, the heating fee shall be paid by the unit where the original heating party works; The unit where the heater works thinks that the heating object is not the employee of the unit and should not fulfill the payment obligation. In view of the above situation, before the traditional heating system has been reformed, heat users should enhance the legal awareness and responsibility awareness of the relevant responsible personnel, modify the relevant clauses in the heating contract in time after the work situation of the unit personnel changes, and terminate the contract with the resigned personnel in time.

(5) Heating should be changed from government behavior to enterprise behavior.

Heating should be market-oriented. Enterprises should operate according to market rules, compete reasonably and eliminate the fittest. Let the people choose the heating enterprises they are satisfied with, and let consumers directly exchange relations with the heating enterprises. Only in this way, heating enterprises can win users by providing reasonable prices and high-quality services, and at the same time let the people choose the heating enterprises they think are suitable, so that both sides are satisfied.

In short, heating is gradually implemented in a market-oriented operation. After heating is changed from welfare to commercialization and monetization, heating should be chosen like buying other commodities in the market, so that people can have the final say and truly conform to market rules. In any case, the heating dispute involves a wide range and has great influence. If it is not handled properly, it will easily lead to social instability. Therefore, in order to properly handle such disputes, it is necessary to further improve the existing laws, regulations and rules, establish a heating mode that adapts to social development, and play its due role in building a harmonious society.

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