On The Security Obligation Of Real-estate Service Enterprise

The connotation of security obligation of real-estate service enterprise is that real-estate enterprise in the real-estate management relation shall fully fulfill his obligations of protecting proprietor's personal or property rights according to the law or real-estate service contract. Real-estate service enterprise violate this obligation should undertake the corresponding compensational liability.The design of system needs theoretical support, the system of security obligation of real-estate service enterprise also has nomological basis for becoming an important means of protecting the proprietor's personal and property rights, which includes: the requirement of the safe value of law, the needs of ensure individual right, the embodiment of harmonious social conception, the utilization of good faith principle the requirement of the danger-control theory, conforms to world legislative trend.In the judicial practice, how to determine the standard of security obligation of real-estate service enterprise is an extremely important question, this problem is concerned with real-estate service enterprise whether should undertake the compensational liability as well as the size of compensational liability. Through observe the standard of security obligation in foreign countries and investigate present situation of our country, the standard that determines security obligation of real-estate service enterprise has legal standard, standard stipulated and the profession standard of usual practice, rational person standard. Based on these standards, the content of security obligation of real-estate service enterprise may divide into the security obligation of facility equipment, security obligation of service management, security obligation of keeping away transgresses, security obligation of system construction.The real-estate service enterprise should undertake the compensational liability if he violates the security obligation. Regarding to the nature of liability, consider the theory and legislative example of foreign countries and the domestic scholar's viewpoints of the nature of liability that violates the security obligation, combine the reality of the real-estate management profession of our country, the liability of tort is predominant essence of liability when the real-estate service enterprise violates the security obligation should undertake, but it remain contains the condition that real-estate service enterprise undertake liability of contract. About the principle of imputation of liability of tort for real-estate service enterprise violating the security obligation, when the facility equipments controlled by real-estate service enterprise is inconsistent with the requirement of safe ,guard, If these facility equipments are belong to the thing which apply to strict liability of sub-clause 126 of " general provisions of the civil law ", real-estate service enterprise should undertake strict liability, otherwise, undertake fault liability. The judgment of the fault of real-estate service enterprise adopts the theory of objective standard. The constitution of liability of tort for real-estate service enterprise violating security obligation include the fault of real-estate service enterprise, damage of fact, relation of cause. On the judgment of relation of cause, the law adopts the related theory of foreign countries. The real-estate service enterprise violate the security obligation of facility equipment and service management, undertake direct liability, the real-estate service enterprise violate the security obligation of keeping away transgresses, undertake supplementary liability. The immunities for liability of tort for real-estate service enterprise violating security obligation has three situations: force majeure, third party's fault, proprietor's fault."Real-estate Management Regulation", the Supreme People's Court promulgate the "Interpretations of Certain Issues Concerning the Application of Cognizance of Personal Damages" and regulated legal documents ensure the stipulation of the security obligation of real-estate enterprise ,which remedied the legislative vacancy of our country's system of security obligation of real-estate service enterprise, marks the safe management of our country's real-estate service enterprise has entered new period managed in accordance with law. But these stipulations have deficiencies, need to be perfected from tort law field and real-estate law field. Besides, the insurance system of real-estate management and the safe fund system of real-estate management also have the function of fill the personal, property infringement that proprietors suffer in the real-estate management region.