The Study Of Legal Problems Of Property Management Contract

A complete legal system must confront two difficult problems:one is about the rights of the legal subjects in opposition to each other,namely the definition of rights,the other is about the rights among the interrelated legal subjects.In property management legal relationship,they are expressed respectively by the external legal relationship based on property management contract between owner's committee and property management company and the internal legal relationship based on owners' pledge among owners.Although the object of this study is property management contract,it is showed that the relationship between rights and obligations among owners meaningful for the fulfillment problems of property management contract.In practice,there are many disputes between owners and property management companies,especially some about the property management fees and the quality of property management services.The two kinds of disputes influence the fulfillment of property management contract directly,because they involve the two most important obligations of the contract.It is noteworthy that the owners in Langqinyuan Community try to reset the rights and obligations of property management contract with the "Trust Contract of the Right to Property Management",especially the rights and obligations of each owner, to solve the disputes above.As to this paper,it is an analysis from the "Trust Contract of the Right to Property Management".It analyzes the present legal system of property management contract in China and if the "Trust Contract of the Right to Property Management" corresponds to the theories of trust law and of condominium ownership.Besides,it discusses from a system-construction perspective how to solve the practical problems of property management contract based on condominium ownership.The chapters of this paper which focuses on the fulfillment of property management contract are arranged according to the promulgation time of the Real Right Law of the People's Republic of China(hereinafter referred to as "the Real Right Law"):In the first chapter,based on the property management contract before the promulgation of the Real Right Law,the defects of the present legal system of property management contract in China,the disputes of related theories and the disordered practice are analyzed from contract nature, contract subjects and their rights,obligations and liabilities for breach of contract.It is believed that the main problems of the present legal system of property management contract which lead to the poor performance of property management contract and the owner's rights-defending difficulty are:provisions of law are ambiguous and judicial practice is inconsistent; especially,this system is short of strong force to guarantee the fulfillment of property management contract.In the second chapter,based on the theories and the laws of trust and of condominium ownership,the "Trust Contract of the Right to Property Management" is examined.In one hand,the creators of this contract have been emphasizing it's "trust nature" which is analyzed in this part from trust's value,aim, "determinacy of three factors",rights and obligations etc..It is considered that this contract has some problems,although it's better than the old property management contract from contract nature,subjects,rights and obligations etc.:laws don't set definitely if the owner assembly can establish trust and if the right to property management can be used as trust property;besides,business trust is used as financial management tool in practice in many countries and regions,this kind of trust referred in the "Trust Contract of the Right to Property Management" is rarely seen.So this contract doesn't correspond with the trust legal system and trust practice.In the other hand,the usability of this contract,in other words,if this contract can be used for property management depends on the correspondence between trust and property management,to be exact, between trust and condominium ownership.Condominium ownership legal system which has the indivisible character of a unit and combines laws of property with laws of persons makes itself totally different from trust legal system which only stresses on every trust beneficiary's interests and only is a law of property,determines that the legal relationship of property management analyzed in this paper is composed of the internal legal relationship based on owners' pledge among owners and the external legal relationship based on property management contract between owner's committee and property management company,determines their close relation and interaction.It also determines the inevitability and necessity to distinguish owners' fellowship from each owner,makes the indivisible character of a unit of property management system very remarkable and makes the content of property management very comprehensive.In these aspects above,trust legal system has little resemblance. In a word,the examination above shows that the "Trust Contract of the Right to Property Management" not only faces theoretical difficulties but also will complicate new problems.So it is denied in this paper.In the third chapter,the fundamental cause contributed to the problems of fulfillment of property management contract in China is analyzed first.It doesn't exist in contract legal system,but in property management legal system:the property management legal system before the Real Right Law doesn't construct a forceful restriction between owners' fellowship and each owner.Then,it is pointed out that through paying more attention to the construction of the legal system of the internal legal relationship among owners safeguards the fulfillment of property management contract "from inside to outside".Next,the complement to the old property management legal system made by the sixth chapter of the Real Right Law is analyzed, especially the contribution to construct the internal restriction between owners' fellowship and each owner and its positive influence to safeguard the fulfillment of property management contract.Finally,the defects of the Real Right Law about the internal restriction are pointed out and related legislative recommends are put forward after analyzing other countries' concerned laws and different statements of jurists.In summary,this paper is focus on the fulfillment problems of property management contract and their solution.Its analysis begins with the "Trust Contract of the Right to Property Management" and ends with condominium ownership.Although the legal problems of property management contract belong to contract legal system first,from this angle to solve them is just a way to alleviate the symptoms,because the property management legal relationship is made up of the internal legal relationship among owners and the external legal relationship based on property management contract and there is the distinction between owners' fellowship and each owner.Condominium ownership's indivisible character of a unit determines the two different positions of the owners' fellowship in property management contract:the owners' fellowship confronts each owner directly in the internal relationship and represents all owners in the external legal relationship.So the way which can effect a permanent cure to the fulfillment problems of property management contract is to attach importance to the internal relationship and to its influence to the external relationship,so that the legal system can be completed in this aspect.In this paper,related thinking begins with the "internal restriction between owners' fellowship and each owner".