Security Obligations. On The Property Management Company With A Third Party Infringement

With the improvement of people's living standard, more and more people have their own houses and the owners have more opportunities to deal with the property management companies. However, there are many kinds of frictions between the owners and property management companies, while the owners are enjoying the convenient services provided by the property management companies. For instance, the compensation problem for the loss caused by the third party due to the fault of the property management companies. This paper focuses on how to solve the problem of the scope of safeguard obligation, the legal principle basis, the obligations origins, responsibilities, and the responsibility range, which are should assumed by the property management companies for the owners. In this paper, by using the principle of interests balance, questionnaire survey and comparison, we did the analysis which can be divided into the following five sections.The first part focuses on defining and comparing of the safeguard obligations assumed by the property management companies. First of all, from the doctrine and practice of the law, we defined the concept of the safeguard obligations assumed by the property management companies, which is in the property management services in relation to the owners. The safeguard obligation assumed by the property management company is the obligation to the guarantee the safety of the owner's legitimate property rights, and personal rights. If the property management companies breach this obligation, they should undertake the corresponding compensation liability. Secondly, by analyzing the General Duty of Security in Germany, the Security obligations in France, the Duty of Care and Security in Japan and the Obligations of Attention in the Anglo-American law system, we could find that it is the purpose of national legislation and the world trend to establish the operator's safeguard obligations in order to protect the rights of the victim better. Although due to the existing legislation of different traditions, different countries adopted different ways, the goals are the same.The second part is about the qualification of the subject in the property service contract. First of all, on the service contract, property owners should enjoy the corresponding rights; Secondly, in terms of consumers, operators or from the characteristics of the owners and property management services relationship between the companies, owners should be regarded as a consumer and should enjoy the "consumer protection" provisions of the safety and security of rights.The third part we analyzed the legal principle basis for the safeguards obligations assumed by the property management company. In the third person infringement cases, the property management company is often take responsibility which not as infringing on the premise that the existence of a duty, therefore, the main reason which the property management company should commitment safeguards obligations is that it is consistent with such principle, such as the relative benefits should consist with the risks, the principle of risk control theory and principles of economic efficiency, the concept of substantive equality requirements of the modern Civil and Commercial Law, the principle of honesty and credibility, the requirements of building the harmonious community.The fourth part mainly focused on the nature of obligations and responsibilities which be burdened by property management companies to the safety and security. Firstly, to the nature of safety and security obligations many people have different views. Most people think that there are three of its source, namely the accompanying obligations, contractual obligations and the statutory obligations. In fact, in different occasions, it should be considered together.Secondly, to a large extent, the nature determines the responsibility. By analysis liability principle, the allocation of the burden of proof, litigation limitation, the scope of responsibility and legal jurisdiction, we could find that in the legal relationship of property management, the liability which property management companies undertaken do not have such a big difference as some scholars imagined. So whether defendant's responsibility is in the contract law or in the tortuous law is not a substantive issue but a technical problem. In the specific jurisdiction, it is important that by which means judges can be more easily achieved satisfactory results between the infringement and then contract. If this can be two ways, it is useful to have a very clear distinction between them.The fifth part focuses on the principle of liability tort liability, as well as elements of a responsible manner assumed by the property management company because of breaching the security obligation. Firstly, from the balance of interests of social justice, we conclude that property management companies should adopt the principle of fault in the principle of presumption of fault if they breach security obligation under the Tort LiabilitySecondly, in the third person infringement cases, property management companies are often burden the liability for negligence, so the fault tort liability have four components, namely: whether the property management companies have the safeguards obligations to the owners; whether property management companies breached its safeguards obligations; whether owners suffered a loss as well as weather property management companies violated its safeguards obligations have the existence of a causal link with the owners of the damage. In order to judge weather property management companies illegal safeguards obligations, we can use standard rational judgment which can be broken down into specific trade practices and predictability of rules. By analyzing the causal link between the common law and the theoretical study of proximate cause, as well as on China's traditional causal relationship between the theory of order, we should adopt a causal relationship or proximate cause theory which means by general social views, in accordance with the society at that time by the knowledge and experience to achieve, as long as most people in the same circumstances that have occurred the same result that the possibility of can be. Syllogism can be specific formula: premise one: Based on the general social knowledge and experience, the kind of behavior can cause the kind of damage results; premise two: In reality, this type of behavior is the kind of damage caused results Conclusion: Well, the kind of behavior is the kind of damage that the appropriate conditions, thus, the two have a causal relationship. Finally, in the third person tort, if the third person cannot be found or have no capacity to compensation, the property management company should take responsibility in the form of added responsibility.On the nature of added responsibility, the mainstream view is that it is not really a jointly and severally liable. By comparing the similarities and differences between these two kinds of responsibility, we could find that the difference between added responsibilities jointly and severally liable lies in the fact: liability of the two have a right to request compensation in the order of the scope of the problem and the debt service is limited. In addition, the legal basis is that the balance of interests which to protect the interests of property owners on the one hand and property management on the other hand .we also have to consider the affordability of the company and its long-term development needs. Therefore property management companies bear the added responsibility.The fifth part is about the qualification of the subject in the property service contract. First of all, on the service contract, property owners should enjoy the corresponding rights; Secondly, in terms of consumers, operators or from the characteristics of the owners and property management services relationship between the companies, owners should be regarded as a consumer and should enjoy the "consumer protection" provisions of the safety and security of rights.