Property services contract performance of the relevant legal issues

In recent years, an increasing number of property services disputes to the courts across the country have brought great pressure on the trial. The reason lies not only in disputes of various types of property services, legal relationships involved in complex cases with a mass characteristics lead to handling difficult, is also more prominent, the judge is more familiar with this type of new cases, coupled with inadequate Laws and regulations, policies and regulations related to institutional transition because of the factors with significant lag, some of the existing legal provisions and comparison principle, the trial provisions of the lack of clear and specific norms, resulting in many difficulties in judicial practice. [1] In this context, the Supreme Court in May 2009 issued a <"On hearing the specific Application of property services disputes the interpretation of legal issues>> [hereinafter referred to as <<Property Services explained>>], on the <<Property Law "and the <<Property Management Regulations>> the issue relating to the abstraction of property services, the judicial interpretation of the provisions in principle, and strive to trial practice to provide clear and specific and uniform standards for judges. Throughout the <<Property Services explained>>, the main contract for the validity of property services, property services, performance of the contract and breach of contract issues, property service contract termination issues and the interpretation of the Law applicable to the scope and timing of such issues as the effectiveness of made specific provisions, many of which from a practical point of view there is no lack bright spots. [2] It should be said that the judicial interpretation of the introduction of practical work for the future to improve the interoperability of laying a foundation. But in order to correctly understand and apply to the interpretation of , from a theoretical point of view of property services disputes the important issues involved in-depth analysis, it is still necessary. It is based on this consideration, this paper through the <<Property Services explained>> the relevant provisions of the judicial practice, on the property Services disputes lies at the core of the performance of the contract and property services closely related issues focus on the hope of correct understanding and Application of relevant provisions of the judicial interpretation helpful.

First, the owners of property services contract in the dominant position of its obligation to identify

[A] dominant position of the owners of the contract

The subject property services contract identified problem is the judicial practice of property services contract disputes heard a big problem. Property can be divided into pre-service contract service contracts and general property property services contract. According to China <<Property Management Regulations>> the provisions of Article 21: "the owners, owners of property services companies before the selection, construction, property services unit selection enterprise, it shall enter into a written contract, the early stage of property services. "Thus, the property service contract is a pre-construction unit signed with the property services business. and according to China <<Property Management Regulations>> Article 15 provides:" Committee on behalf of the owners selection of owners and owners of property services, property services companies signed a contract. "Thus, for general service contract for the property, it is by the Industry Committee and signed by the property services company. You can see that the formal signing of the contract, Whether Estate Service Contract or the general property services contract, the owners have signed the contract were not directly. In practice, this is precisely the owners often refuse to accept the contract under which an important reason for restraint, they think that they are not pArties to the contract Property Services .

Must be clear that, "<Property Management Regulations>> Article 25 provides that:" the construction unit and the buyer signed the contract for the sale of property shall include pre-contract services, the contents of the property. "Under the terms of the construction unit with the property bought by the enter into a contract for the sale of property, contains both the transfer of the property service contract agreement early, so early owners of the property service contract binding arises, is the construction unit in accordance with the service contract on the property owners generally take. [3] for general property services contract, "<Property Law"> Article 76, "<Property Management Regulations>> all the provisions of section 11, hiring and firing but the owners of property services company jointly decided matters. and the owners of property services business is not Property Services Committee with the owners to establish the legal relationship between the owners of the Committee in accordance with the mandate and the selection of the property owners entered into a service business property services contract is the result of the owners to exercise autonomy. [4] Therefore, even though formal point of view of property owners did not participate in the signing of service contracts, but their essence, whether from the existing legislative provisions or from the legal point of view, the property owners are service contracts and property services companies in the real rights of the relative and obligations of those who enjoy the bearers.

"Property Services explained>> This is made clear interpretation of its article 1:" The owners are not parties to the contract on grounds of its defense, the people's court shall not support. "Thus, the terms defined in the property owners the dominant position of the service contract.

[B] the owners should bear the main contractual obligations

1. The obligation to pay property service charges

Property service contract is a new contract, the nature of theory and practice of their profession will inevitably have a different understanding, viewpoint, there are commission contract, the service contract that the hybrid contract, said the independent contract says so. Tong said advocates should learn from the commission contract The system of service contracts related to the mechanism handling the property dispute, I agree with this more, because of their legal relationship, whether the formation of, or the characteristics of the property service contract with the commission contracts have a high similarity. from business owners and property services legal relationships, the contract owner is the principal property services; from the content point of view of property services contract, the owner is to pay compensation, the party receiving service. owners of property services companies have the right to request the contents of the contract to provide appropriate services, Correspondingly, the owners of the main contractual obligation is to pay the associated property services.

Of course, the meaning of property services is not simply the commission of property services companies. Property service charges can be divided into public services fee [for the property rights, the use to provide public hygiene, public facilities, maintenance and security, green, etc. Public service charges], the public agency of the service charge [for the property rights, users provide collecting payment of utilities, gas, cable TV, telephone charges and the public agency of the costs of services received ] and special service fees [as property rights, the use to provide special services fees]. [5] Some scholars claim to the property service charge is divided into two categories, one is used to distinguish between the basic building maintenance, repair remediation work and the daily management and other services related to living expenses, which is usually in the Context of the property service charges, and the other is a special property for the property after the expiration of the common parts warranty, the maintenance of common facilities and equipment updates, the cost of reconstruction, called the special maintenance funds. [6] in their daily lives, the majority of property owners tend to believe that only charges the commission of property services companies, the owners refused to pay, non-payment of property service charges triggered a judicial practice Property Services is one important reason for the dispute. <<Property Services explained>> to the specific Article 6 provides: "The written reminders, the owner refused to pay without justification or summon the property within a reasonable period not to pay fees, Property services business owners to pay property charges request the people's court should be supported. property services business has been in accordance with the relevant provisions of the contract and provide services to property owners not only enjoy the property or services without receiving defense-related, the people's court shall not support . "According to the article, written by property services company in the reminders, the owner still refused to pay without good reason, non-payment of property charges, can sue the owners and get the support of the people's court. This is not only fast and efficient collection of property services business property costs of legal support, also the property owners to pay service charges to actively fulfill the contractual obligations will play the role of supervision and warning.

2. Assistance obligations

Property property services enterprises in the maintenance, service, warranty process, the owners should be given assistance, the assistance includes not only a positive obligation to provide the necessary level to facilitate the initiative, but also the negative aspects of not impede, impair the property services business services and management work. for the obligations of owners, "<Property Services explained>> Article 4 gives the corresponding property services company the right to appeal:" The owners of property services contract or breach of Laws, regulations, management rules, the implementation of prejudice to the conduct and management of property services , the owners of property services companies request restitution, to stop the infringement, eliminate prejudice, and other relevant Civil liability, the people's court should be supported. "according to which the breach of obligation to assist the owners, the property services company may exercise the right to appeal, requiring the owners restored the status quo, to stop the infringement, eliminate prejudice and other corresponding Civil liability.

Second, the scope of the obligations of property services companies found

[A] property services companies, the main contractual obligations

Property services business as a provider of property services, the scope of their duties but identification of the main points of property services contract. In summary, the property services companies commissioned by the owners shall be in accordance with the contract to provide the corresponding property services. According to << Property Services explained>> Article 3, paragraph 1, states: "property services companies do not perform or do not fully comply with property services contract or the laws and regulations and relevant Industry standards to determine the maintenance, conservation, management and maintenance obligations, the owners request property services companies continue to fulfill the commitment, to take remedial measures or compensation for losses, the people's court should be supported. "Thus, property services companies to provide services to content, highly summarized as maintenance, conservation, management and maintenance of four aspects. In my opinion, the four can be divided into two levels: first level point to the "management of things", referring to the building, base, auxiliary facilities, related site and other common parts for maintenance, maintenance and repair, the second level points to "people management" is a distinction between ownership by the people living life to the management, [7] including the maintenance of the property management area of ​​environmental health, including public maintenance of a harmonious and orderly order. For example, when some owners undue exercise of exclusive rights, prejudice on the other owners, or against the common interests of the owners, the property services company of its obligation to conduct prompt and stopped.

[B] property services companies, the expansion of the obligation

Worth noting that the question is, "<Property Services explained>> the provisions of section 3 of the terms implied contract theory based on a reasonable expansion of the property services business should be the basis for the scope of obligations. [8] implied terms of contract theory [Implied Terms] derived from the common law. The so-called implied terms that the parties did not write the contract, had never even negotiation, but based on the behavior of the parties, or based on the express terms of the contract, or based on legal, trade and Industry rules of customary the provisions of the existing terms of the contract should be. [9] In general, study the scope of rights and obligations of parties to the contract, both parties need to express terms of the contract [Express Terms], that the two sides reached agreement and stated in the contract related matters for the appropriate interpretation. but can not completely express terms of the contract to cover all the content, and some only in accordance with the express terms of the contract dispute may not be resolved. When in accordance with the express terms of the contract can not reasonably resolve contract disputes, common law countries, common law court advocates must take advantage of the flexibility mechanisms incorporated into the contract terms will be implied into, a certain sense, the extensive use of implied terms and As a tool for the contract amendment is actually the principle of autonomy to some extent by the negative; from another level sense, the implied terms is the principle of autonomy be reconciled with the Court acts as an intermediary. [10] Therefore, the United Kingdom implied terms of contract law bearing function, is to express terms of the contract rights and obligations which are not entirely related to the Department, hinder the performance of the contract and dispute resolution, it may allow the judge in accordance with the law, relevant customary rules, such as the express terms of the contract and thus presumed to judge the content. and in Civil law, although there is no implied terms of that, but in the event fall short of the express terms of the contract, the purpose of the contract implementation is dependent on the principles of contract interpretation and contract loopholes to add to completed. If China <"Contract Law"> Article 61 provides that: "after the commencement of the contract, the parties on the quality, price or remuneration, place of performance and so there is no agreement or the agreement is not clear, may agree to add, can not reach a supplementary agreement , in accordance with the relevant provisions of the contract or transaction used to determine. "contractual terms and transactions can be used as a contract or agreement is not clear when the lack of reference. In addition, China <" Contract Law "> Article 60 also stipulates that the accompanying obligations of the contract: "The parties shall follow the principle of good faith, the nature of the contract, to fulfill the purpose of notification and the transaction practice, assistance, confidentiality and other obligations." This is based on the principle of good faith the obligations of the parties to the contract for the expansion of the scope. [11] from a methodological perspective, the implied terms of contract theory is a loophole in the supplementary methods, although the two legal systems to deal with this problem in different ways but the same purpose, the same thing can be described. Of course, a reasonable theory of reference implied terms of contract law in China theory and practice is of great significance, "<Property Services explained>> the provisions of Article 3 is a very good description.

According to <<Property Services explained, "Article 3, paragraph 1, the property services company based obligations include not only the scope of the contract, including laws, regulations and relevant Industry norms. Of particular note is the first 3 paragraph 2, states: "property services companies, public pledges made and the development of the service rules, it should be recognized as an integral part of the property service contract." Accordingly, the property services companies to make public details of the service commitments and services will also serve as property obligations based service enterprises. The reason is, property services companies and their public pledges made to develop the service rules, the owners of the property services companies hiring process, the final decision of the owners have a significant impact. service commitment and Service details, property services companies as a "unilateral promise", [12] also serves as the basis of its contract with the owners, their actions must necessarily be binding, which is very important to the protection of the rights owners.

[C] property services companies, security and understanding of the obligations identified

Property services business and personal property owners should bear the security obligations? For a commitment should be how to identify the range of their limits? This is more common judicial practice and theoretically controversial issue .2008 announced <<Property Services explained>> the draft has been set on the property services in the enterprise security obligations under the provisions of protection of their Article VIII states: "property services not covered within reasonable limits the safety and security obligations, thereby causing property services in the region of personal injury results, right to request compensation for its bear the corresponding liability, should be supported." In the formal introduction of the <<Property Services explained>> in the no to the terms of Some experts therefore believe that the Supreme Court of the safety and security of property services businesses obligations negative attitude, and property services companies can not be advocated as a commitment to safety and security obligations subject, asking them to bear the duty of security is neither a legal basis, nor can management base. [13]

It should be said, in the basic theory of safety and security obligations, legal structure and statutes regulate the circumstances are still unclear, do not rush to safety and security of property services companies clearly defined obligations. But this does not necessarily mean that the property Service businesses do not assume any obligation security. In theory, the property services business in a particular security obligations assumed under the circumstances, Application of the law still have room for interpretation.

1. Judicial interpretation

Supreme People's Court <"On hearing the case law applicable to personal injury compensation Interpretation of Several Issues>> [hereinafter referred to as <<personal injury compensation interpretation"] Article 6: "to engage in accommodation, catering, entertainment and other business activities or other social activities natural persons, legal persons, other organizations, not entirely within the reasonable limits of safety and security obligations, thereby causing others to suffer personal injury, right to request compensation for the corresponding liability of its commitment to the people's court should be supported. "This is the German law of the Court on the reference security obligations communication theory [14] made on the security of direct obligations of the provisions. Under this article, assume the obligations of the main security for the business activities of the operators and other community organizers, but not limited to the provisions cited engaged in accommodation, catering, entertainment operators and event organizers. With the theoretical Research on security duty deepening of judicial practice on safety and security obligations no longer limited to the provisions applicable to the operators listed, such as banks, airports, property services companies, also has won it. Such as "indoor murder case" , the court found that normal use of property services business is not security monitoring system and not strictly enforce the registration system for foreign workers, in violation of security obligations, deal with the death of the plaintiff in its ability to prevent or stop the damage within the bear the corresponding liability. [15] from the nature of property services companies for which they are engaged is a service Industry, of course, belong to the scope of the operators and, more importantly, from a legal point of view, the property services companies comply with a duty of security holders legal basis, such as the theory of risk control requirements, consistent with principles of income and risk requirements, the requirements of total social cost savings and so on. [16] In fact, to determine whether to assume security duties is not the standard bearer of whether the kind of "operator" status, but whether in its "source of risk control." [17] as area of ​​effective management of property services property services companies, sources of risk control within the region is clearly higher than the owners. Therefore, the property services business in certain circumstances assume the corresponding obligations of the safety and security not only in people's daily life experiences, but also the corresponding the legal basis.

2. The contract or contractual obligation accompanying

Generally speaking, the property services companies and the owners are in the service contract to be agreed on security obligations, property services companies will also do this with a dedicated security personnel, establishment of relevant security mechanisms, install the necessary electronic monitoring system, regional border the envelope to improve facilities, property services, safety and security of the region is to the property services companies to implement an important part of daily management. in the contract security obligations on the case of explicit agreement, the property services business owners breach of this obligation damage to property or persons, will take the appropriate penalty. This damage includes not only all the property services business or property under the administration of the damage caused to the owners [18], including violations by third persons caused by the owner damage. [19]

Secondly, according to <<Property Services explained>> Article 3, paragraph 2, the property services companies and service conditions of unilateral commitment to the contract also included the content, so if, in its unilateral commitments or services related to the safety rules in obligation pledge of protection, will also be performed as a contractual obligation.

In addition, the accompanying obligations in addition to ancillary benefits to achieve the interests of creditors, there are creditors to avoid infringement of the interests of persons or property on the function of such obligations, collectively known as the German scholar Schutzflicht [obligation to protect], of its nature, fact and violations Law of the transaction security obligations [Verkehrssicherungspflicht] with its nature. [20] According to the nature of the property service contract and purpose of the contract, property owners and service businesses within the area safe to assume contractual obligations to protect the scope of the accompanying obligations. Therefore, Even if the contract does not guarantee the security agreement or obligation to make clear, but according to <"Contract Law"> the provisions of Article 60, based on the principle of good faith obligations derived from the contract accompanying security obligations is one source of law.

From the foregoing, the property services companies breach security obligations, causing damage to legitimate interests of the owners, not only to tort liability for infringement, but also bear the liability for breach of contract. At this time competing claims will occur, according to < "Contract Law"> the provisions of section 120, the parties may choose to list by <"Contract Law"> filed breach of contract complaint, you can also select from Fanti and regulations by infringing infringement complaint.

3. The limits of safety and security obligations

It should be noted that the safety and security of property services companies are not obligations of free interpretation and Application of the definition and misuse of improper safety obligations will result in non-border expansion, which will bring great business property services business risk, detrimental to their the development of the industry, and ultimately may in turn adversely affect the majority of the owners. For example, in academia and the judges felt that the height is unknown difficult throw the case of objects which cause damage, to property companies have not tried the court security obligations grounds so that it assumes certain responsibilities. [21] I believe that the referee could have such a discussion. "height of parabolic" and "falling objects" Although only one word, but different facts of the case due to the property services companies content of the obligation and the security requirements of the far limits. cases of falling objects, may be due to lack of management and property services business place, and cause damage parabolic height, was due to a third party violations occur, require property services companies parabolic high altitude surveillance and prevention people, apparently unreasonably increase the scope of its duty of care, expanded the limits of safety and security obligations. Of course, the distinction between reasonable and unreasonable standard, not In a word, only, as the case specific case were judges, but generally speaking, as long as the property services business in the security staff and facilities, equipment, security system is established, the implementation of aspects of the security system had done enough work, it should be done to determine its safety obligations. can sure, that specific issues and problems and still can not get out of the standard number of important tests to determine factors such as laws and regulations, legal doctrine, the experience of justice or even common sense values, and so on.

Third, the property service contract disputes involving the interests of justice and the legal interpretation of measurement

[A] measure of interest: performance of the contract conflicts with the owners of related rights

1. The conflict generated

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In "<Property Services explained>> before the promulgation of the property service contract is often called the property management contract. To the name issue, scholars have been discussed. With a view of property management in the" management "with the administration under the obedience significance, reflecting the characteristics of traditional property management, property management is difficult to reflect the modern professional, social and market-oriented nature of service relationship of equality, to use the "Habitat" or "Property Services" in the title instead. [ 22] most scholars agree more. under the influence of the point of view, "<Property Law"> to the past "Property Management Company" changed to "property services business", "<Property Management Regulations>> along with revised accordingly, will also be "property management companies" were all changed to "property services business." The <<Property Services explained>> the outset, defined as "property services disputes", a very accurate definition of the legal relationship to be adjusted. Property services disputes, service companies and owners of the property in the performance of the property service contract between the generated disputes are claims disputes. It is different from property management disputes, which is a common administrator [that the owner] for the distinction between the use of all of the buildings, income, dominance disputes. [23] Therefore, the owners have a property management rights, and property services companies need to undertake the obligations of property services. Of course, it is undeniable is that property service property services companies to perform the contract, the building's common parts of their de facto management rights have the right kind of management is enterprise-based delegation of authority, in the context, the "Management points to the property property management companies and building relationships between subject and object", [24] it is both a right and an obligation. at this level speaking, management and service have the same meaning.

In general, the owners of the property management and property management services companies actually have the right, should be consistent in content, and property services to owners of the enterprise management should be based on licensed content. But in special circumstances, also occur conflict. For example, the owners or the owners of the Committee on behalf of business owners and property service contracts, but the contents of the contract against the legitimate interests of some owners, when problems arise is that some owners of property with other owners the right to conflict management, property services management of the business part of the owners of the property rights and conflict management, property services companies to perform the contract, the relevant agreement will result in damage to the legitimate interests of some owners. At this point some owners to protect their legitimate rights and interests can be based on <<Property Law " > shall exercise the cancellation right, but the nature of avoidance, effectiveness, and the exercise of such issues to be discussed.

2. Owners of the effectiveness of avoidance

The author believes that right to the owners set up cancellation terms of the objectives is to prevent the owners or the owners of the Committee the right to make decisions at the expense of the abuse of the legitimate interests of the owners. However, the Committee to owners or owners of property services companies with the contents of a contract to exercise the right to revoke to more than just owners or the owners of the Committee the issue of abuse of rights, but also often involve the distribution of interests between the owners. as in "Property Law"> after the enactment of the so-called first owners dismiss the case, the majority of the owners [377] endorsed the new district a fence to prevent vehicles and people wander in and out of alien plot, but a few owners [8] considered that the fence reduced their actual use of public space, against the legitimate rights and interests. At this point, to determine whether for some owners to exercise the right to revoke the relevant contents of the property service contract nullify the problem, in essence, into the exercise of the right to revoke part of the owners and other owners of interests between the measurement issues. This is the value of Civil judgments. He who interests to give priority to the interests of protection or whichever has a higher rank value, you need to depend on the relevant legal principles and methods to measure interest to be determined. according to scholars of the Civil Law of the problem of value judgments rules of substantive arguments, in the absence of adequate and sufficient justified circumstances, shall not be in favor of limiting the freedom of civil subject, [25] If the right to limit some property owners is based on the value of rank higher interest considerations, the reasons for the restrictions can be described as full and legitimate enough: If the area-based property management public interest within the rights of the minority owners are reasonable and appropriate, then this time the owners claim the right to revoke a few hard to get support. On the contrary, if the part is limited to the rights of owners of higher value rank, then no restrictions on its freedom, its avoidance of the claim should be supported. Thus, in certain special circumstances, the effectiveness of the right to revoke the owners should not be generalized, such cases in the Magistrates Court, reasonably necessary in specific cases the method used to measure interest, especially to strengthen the reasoning part of the Article, by reasoning, to ensure the legitimacy and appropriateness of decisions.

[B] interpretation of the law: Landlord Property Services Contract in the defense of "justification"

1. Of the problem

As mentioned above, the property owners refused to pay service charges for non-payment judicial practice is a major problem, "<Property Services explained>> Article 6 were targeted for this requirement, under which property services business after a written reminder pay program, the owners still refused to pay without good reason or non-payment, the property services business may apply to the people's court, and the court support. This provision is no doubt reminders for the property services business services provide a strong support, but referee for the specific case, the still involves a problem, the so-called "justification" of a snack, what justification criteria? This is a trial practice still need to clear the operation.

2. On the "justification" of that

In fact, "<Property Services explained>> the relevant provisions of the problem of justification implies a certain description, such as Article 5 states:" The property service property services company the contract or the breach of laws, regulations, departmental rules and regulations, without expanding range of charge to raise fees or recurring charges, the owners in order to defend on grounds of violation charges, the people's court should be supported. "Accordingly, the" illegal fees "is the owner of a defense of justification. Article 6 of the rear section , from negative reflects the problem of justification of the paragraph: "property services business has been in accordance with the relevant provisions of the contract and provide services to property owners not only enjoy the property or services without receiving defense-related, the people's court shall not support . "Therefore, the property services business in accordance with contractual obligations, the owner does not enjoy or do not need to accept the defense-related services, can not constitute legitimate reasons. on the facts, the owners owe a defense mainly from two aspects, one unreasonable for the property, and the other to provide services for property or services are not ill. according to the system of legal interpretation in the interpretation and teleological interpretation, [26] combined with the fact that the defense produced the reasons, I believe that the understanding of justification and determine can be divided into two levels: first, the law or breach of damage to the interests of owners, and constitute a justification defense. specific, the property services company violated laws, regulations, departmental rules and regulations of the charges, illegal charges, or breach of contract, damage to the interests of owners, owners of the defense as a justification, and the second, there is no law or obvious in the case of default, the owners of defective service's defense, needs to be based on the principle of good faith, property services companies with service standards and property charges, a comprehensive evaluation of property services, and to determine whether the owners set up a defense of justification.

3. Litigation and dispute resolution mechanisms demonstrate

Of the owners, justified on the exercise of the right of defense to protect their legitimate rights and interests of its course, provide a strong protection, but should also see the same defense to the owner the right to abuse the rights given the opportunity to leave. To prevent abuse of the legitimate owners reasons to defend and protect the legitimate rights and interests of property services companies, when the owners of the defense based on the exercise of the right of legitimate reasons, they must be justified according to the proof of claim. that property owners now have evidence to prove breach of contract service enterprises act illegal or that its services do not meet the requirements of good faith in truth. Otherwise, not only the owners of the defense is invalid, the act itself will bear the corresponding legal consequences. As for the judicial practice in a growing number of property service charge disputes, they must establish the appropriate dispute resolution mechanism, to further standardize the management of property services companies management fees on the property services industry regulatory standards, improve the autonomous system owners, etc., the only way possible to avoid arrears disputes.

Conclusion

How competitive, shelter the world. The performance of the property service contract solidarity with the people's daily life, in close contact with the social stability. On the legislative level, the judicial interpretation issued by parties to the contract for the maintenance and protection of the interests of providing a platform, but the administration of justice perspective, trial practice, the property service contract can be said to perform the complex issues involved, not only to determine the facts and value judgments criss-cross, the unity of the referee and the case is also probably not be properly co-induced, but misjudged the situation is a miscarriage of justice inevitable. In such circumstances, in-depth study of existing case law, sum up experiences and lessons of the past to explain the correct Application of the provisions of specific cases, a reasonable choice of legal interpretation and application of measurement methods and benefits becomes very important. Therefore, "the property Services explained>> While the introduction of the judicial practice of the future will provide strong guidance, but the position of standing on top of the applicable law, to judges, its work remains to be done.





Notes:
[1] Yang Lixin editor: <<"On hearing the specific property services disputes the interpretation of Application of Law> Understanding and Application", Law Press, 2009 edition, p. 27.


[2] if practitioners believe that the interpretation of the distinction between property management and property services, given the property rights of enterprises subrogation action to protect property owners to unilaterally lift service contract, to solve problems such as delinquent property owners, there were many bright spots. See Yan Xueming: "From a practical point of view the highlight of property services and the lack of judicial interpretation," set <<legal for>> 2009 No. 7.


[3] XU Hai-yan: <<distinction between the legal aspects of all building management Research ">, the law the agency in 2009 edition, p. 265.


[4] Du Wanhua, Xin Zhengyu, Yang Yongqing: "Supreme Court <<Building Ownership judicial interpretation >>,<< judicial interpretation of property services>> to justice", containing <<Prejudication Research "> Volume 2, published in the People's Court Club 2009 edition, p. 74.


[5] Cao Bang editor: "a typical case of new property disputes and thematic guidance>>, China Legal Publishing House, 2009 edition, p. 212.


[6] with the note [3], p. 292-293.


[7] ANDROLOGY Chen Huabin: <<Property Law "> [third edition], Law Press, 2005 edition, p. 183.


[8] with the note [4], p. 75 below.


[9] Wang Liming, Cui far: <Contract Law "New Theory • General>> China Politics and Law University Press, 1996, p. 187.


[10] Su No. Peng, Zhu Jiaxian: "On the English law of contract implied terms", containing <<Law and Business Research "> 1996 5.


[11] judicial practice, there have been a breach of contract of property services companies liable for breach of the obligations accompanying the case. Such as the "messenger case of delay" in the court of second instance that the principle of good faith in accordance with, the defendant bears the property services companies notify promptly forwarded e-mail or the obligations of the recipient receiving the message, and the defendant violated the accompanying obligations, causing the plaintiff loss the owners should bear the liability. See the Beijing First Intermediate People's Court [2008] One end of the first word in the 3542 Civil No. <<Civil Judgement >>.


[12] Zhang Guangxing: <<Claims Act Zonglun>>, Law Press, 1997 edition, p. 56.


[13] with the note [2], Yan Xueming text.


[14] Zhou Youjun: "Tort law as an obligation of the expansion", containing <<Legal>> 2008 2.


[15] See the Beijing First Intermediate People's Court [2006] A final word in China Civil Judgement No. 10996.


[16] Zhang Bao, Tang Qinglin: "operator places the safety and security of service obligations", containing <<Legal Research "2003 3.


[17] such as Germany, Professor von • Barr said: "In the original form is not as a responsibility to others within the field of tort liability, obligation of the supervisor control potential hazards is often the source of danger from his control." See [ de] von • Bar: <"The European Comparative Tort Law"> [scroll down], Jiao Meihua translation, legal Press, 2004, p. 255-256 pages.


[18] such as the "roof of the case of falling objects", the property services company abandoned an object placed on the roof not addressed, will result in the fall injured the plaintiff, the court did not do the property services companies to the appropriate security obligations and management responsibilities, the plaintiff liable for damages. See WORKER, Xuan Yi: "the roof of the property company Pipan Pei Waste injured person", in <<People's Court News>> August 25, 2008 3rd ed.


[19]如"保险柜失窃案"中,合同明确约定小区内设专职保安人员,24小时值班,进行治安巡逻和治安保卫工作,并且原告与物业服务企业曾两次签订补充协议,加强保安,原告也因此增加支付了物业服务费,但由于被告公司未如约履行安全保障义务,致使原告保险柜被盗,法院判决被告承担违约责任.参见广东省佛山市中级人民法院[2005]佛中法民五终字第908号民事判决书.


[20]王泽鉴:<<民法学说与判例研究>>[第四册],中国政法大学出版社1997年版,第84页.


[21]谢罗群:"深圳'高空抛物案'一审判决引发物业管理行业关注",载<<中国物业管理>>2008年第3期.


[22]徐建明:<<物业管理法规>>,东南大学出版社2000年版,第17页.


[23]同注[2],颜雪明文.


[24]同注[3],第258页.


[25]王轶:"民法价值判断问题的实体性论证规则",载<<中国社会科学>>2004年第6期.


[26]梁慧星:<<民法解释学>>,中国政法大学出版社2003年版,第217页以下.

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