Exercise And Restrictions On The Right Of Defense In Performance Of The Realty Service Contract

With the further development of China’s real estate industry, the consciousness of rights safeguarding of the property owners and property service enterprises is more and more strong. As a link between the owners and the property service enterprises, the property service contact has become an independent civil contract.While performing the property service contract, the right of defence have the following characteristics:the defending body is special, the property service is immeasurable and sustainable. However, the apply and limit of the right of defence only had principle stipulation in the Aritcle5th and6th of the "Explanations of specific application questions about supreme court hearing property services tangle cases" which was established in20th, April,2009, and it didn’t have clear explanation.The types of property owners exercise right of defence contain:the owners defense property service enterprises first perform the contract, the property successors defense owed property, the owners defense previous property service contract, the owners defense the property assist obligation. The property service enterprises can exercise the right of defence of stopping dedicated property service when single or a few owners refuse to pay property management fee; while a large number of owners refuse to pay property management fee, impairing the property service enterprise, the enterprise can lower the service standard, reduce the service items or stop the service to exercise the right of defense.Although exercise the right of defense helps protecting members interests, regulate property relationship, but it also harm the normal operation of the property service enterprises,public environment and society regulations. So, when the communion part of the building has problem and needs repair, and the enterprises doesn’t repair in time, single shouldn’t exercise the right of defense based on the right of communion part, instead, after the agreement of a specific number or proportion owners, they can jointly exercise the right of defense. Besides, the owners exercise the right of defense for not entering into a previous property service contract should be restricted. Also, when a single owner doesn’ t pay the management fee, the enterprise exercise the defense right by stopping supplying water, electricity, gas, heat and so on is not allowed and should be restricted. When all owners refuse to pay the management fee, the enterprise should discuss with the owners committee first, then complete the transition process and finally exercise the exit right.To solve the problem in exercising the defense right in property service contract, we should perfect the application of the right of defense. Establish perfect regulation of the property management fee payment, specify the reasons and cases about application and restriction on exercise the right of defense, clarify the burden of proof for the lawsuit between property-owners and service enterprises, and normalize their behavior in the lawsuit. Thus, the exercise of right of defense in property service contract can conform to the standard, and the interests of the owners and property service enterprise can be guarded.