National property fee standard

1. The standard calculation standard of liquidated damages for overdue payment of property fees is determined by the principle agreed by the parties in China's Contract Law. Article 1 14 of the Contract Law stipulates that the parties may agree that one party shall pay a certain amount of liquidated damages to the other party according to the situation of breach of contract, or may agree on the calculation method of compensation for losses caused by breach of contract. At the same time, however, China has adopted the principle of intervention in the penalty clause, with the aim of making the penalty mainly compensatory and punitive. Paragraph 2 of Article 1 14 of the Contract Law stipulates that if the agreed liquidated damages are lower than the losses caused, the parties may request the people's court or an arbitration institution to increase them; If the agreed liquidated damages are excessively higher than the losses caused, the parties may request the people's court or arbitration institution to reduce them appropriately. How to judge the agreed liquidated damages "excessively higher than the losses caused" and how to "appropriately reduce them" is not further clarified in the law. In the current judicial practice, it is generally believed that the people's court should take the losses caused by breach of contract as the basis, take into account the performance of the contract, the fault of the parties, social and economic conditions and other factors, and weigh them according to the principles of fairness and good faith. In view of the above analysis, the standard of liquidated damages for overdue payment of property fees is stipulated in the contract, and the contract shall prevail. However, when there are "sky-high" liquidated damages or low liquidated damages, the parties may request adjustment through legal means. When the two parties have not agreed on the standard of liquidated damages for overdue payment of property fees, according to the Reply of the Supreme People's Court on Revision (Fa Shi (2000) No.34): "The people's court may calculate the liquidated damages for overdue payment with reference to the standard of charging interest on overdue loans by financial institutions stipulated by the People's Bank of China. When the People's Bank of China adjusts the standard for financial institutions to charge interest on overdue loans, the people's court may adjust the calculation standard for calculating liquidated damages for overdue payment accordingly ". The penalty interest rate for overdue loans stipulated by the People's Bank of China is 30% ~ 50% of the loan interest rate (Yinfa [2003] No.2565438 +0). That is, in the absence of agreement between the two parties, the standard of liquidated damages for overdue payment of property fees should be calculated according to the loan interest rate level plus 30%-50%. For example, on February 23, 65438, the adjusted benchmark interest rate for RMB loans with a term of 1 was 5.3 1%. After adding 30% ~ 50%, the liquidated damages for late payment will be converted into 1.9-2.2%. The Model Text of Property Service Contract is widely used in the industry and must be formulated in a neutral position. Therefore, the author thinks that the default standard of liquidated damages in the model text should also refer to the standard of charging overdue loan interest by financial institutions stipulated by the People's Bank of China, and be dynamically adjusted according to different years. For example, according to the standard in 2009, one day overdue can be charged at two ten thousandths. 2. How should the liquidated damages be stipulated? Party A is not a specific subject, but a group of people, that is, all owners. Property fees are shared by all owners in proportion to the construction area. In essence, the process is that all owners raise funds first and then pay them to the property service enterprises to buy and consume services. Theoretically speaking, the property service fee does not belong to the property service enterprise at first, but belongs to all owners. Individual owners fail to pay or refuse to pay property fees, which actually causes all owners to breach the contract and damages the interests of all owners, especially the owners who pay the fees normally. Therefore, the agreed process of liquidated damages is best discussed and decided by all owners. The liquidated damages and standards for overdue payment of property fees are first agreed in the management statute, and then agreed with the property service enterprise in the contract. In the early stage of property management, because the Temporary Management Statute was formulated by the developer, the standard of liquidated damages was often high, which became the "overlord clause". Therefore, it is suggested that the standard of liquidated damages stipulated in the Interim Management Statute should not be higher than the standard of interest on overdue loans of financial institutions stipulated by the People's Bank of China. The standard of liquidated damages for overdue payment of property fees formulated in this way is more reasonable, and it is also convenient for the owners' committee to urge owners to pay property fees within a time limit or pay liquidated damages for overdue payment according to the management statute or temporary management statute.