On The Duty Of Safety And Security Of Property Services Companies

Though real estate management has short history in our country , develops rapidly. In the past 20 years, real estate management domain and the coverage has expanded unceasingly .Especially in the city, the specialized estate management already becomes essential part of people's daily life . Along with real estate management rapid development, some questions which exists in the estate management also gradually highlights. In recent years, the dispute between the real estate service enterprise and owner's presented the rising tendency , the very major part of it involve to the real estate service enterprise's safety - guard obligation .In the first part of this article analyze the difference between real estate service contract and named contract through real estate management correlation concept elaboration .Review the real estate management process and draws out safety - guard obligation through a series of cases which exists in real estate management process.The second part of the article elaborate the reason of safety - guard obligation origin .It analyze the reason about the real estate service enterprise undertaking safety - guard obligation through elaborating the faith benefit, the active control risk, reduces the social cost, the risk and income consistency principle . In the judicial practice , the disputes involving to a very important question which is if the real estate service enterprise has safety - guard obligation . This article analyze the origin of safety - guard obligation .The first , the written law stipulation is one kind of lowest standard voluntary origin, and has forcefully the suitable effect. Second ,the contract is more universal voluntary origin .Third , lacking these two kind of origins not inevitably denies the obligation of safety existence, judge may depend on good faith principle to make judgement .To balance the benefit between real estate owner's and the real estate service enterprise must define the scope of safety -guard obligation . On the one hand, must define strictly its responsibility scope in real estate management region. On the other hand, the real estate service enterprise undertakes safety - guard obligation to be supposed to the special relational existence as the basis. In this foundation, the article determines some concrete protection content.The third part analyze the responsibility nature of the real estate service enterprise violating safety - guard obligation and draw out its liability is possibly the tort liability or the right infringement responsibility. when two responsibilities compete fashionably, entrusts owner the option. The real estate service enterprise's tort liability is based on negligence , without negligence namely without responsibility. On the one hand this system design could protect victim's benefit .On the other hand, it conforms to the real estate service enterprise's development present situation . The tort liability of the real estate service enterprise violating safety - guard obligation frequently is not the achievement tort liability .But the author believed that it also should discuss causal relation in the disachievement tort liability domain. Thus, only when the causal relation between negligence and the damage existed the real estate service enterprise undertake the liability . The liability form divide into two kinds, one kind of damage is because the real estate service enterprise has not fulfilled safety - guard obligation cause damage directly, then must undertake the direct responsibility. Another kind of damage is because the third human's illegal act even the criminality causes damage directly, but the real estate service enterprise with safety - guard obligation has not adopted the suitable measure to stop the damage, it must undertake the supplement responsibility. Only when it could prevent but not take measure to stop the damage the real estate service enterprise undertake the corresponding supplement responsibility. The responsbility is not the complete responsibility. After undertakes the responsibility the real estate service has compensation power.