The Research Of The Counterplead Rights In The Realty Service Contract

As a named contract in the special law, the real estate service contract has the characteristics of the complexity, un-certainty and group nature, which leads to the counterplead right being frequently used in the realty service contract. In the realty service contract, the owners of the property often exercise their counterplead rights in the form of refuse to pay property management fee. As a response, some of the estate service enterprises exercise the disputes in the form of refuse to apply related services or cut the water and power supply. Due to the property service is designed to contribute to the common value of residential property and maintain good living environment, whether the owners or the realty service enterprise, it is necessary for them to limit the exercise of the right of defense to some extent. Based on this position, this thesis focuses on how to correctly exercise the right of defense in the realty service contract.Except for the preface, the thesis includes three parts. In the first part, the basic theories of the real estate service contract disputes are analyzed. Firstly, the author discusses the basic theories of counterplead rights, clarifies the difference between the defense and the right of defense, and introduces defense types in our country Secondly, the author emphatically analyses the nature of the realty service contract, characteristics and legal relationship. Lastly, through analyses the necessity, legal basis, subjects and main types of the dispute rights in the real estate service contract, this part emphatically discusses the characteristics of the real estate service contract disputes. In this part, the author gets the following conclusion. First, the subjects of the dispute rights in the real estate service contracts owned to the owners and the realty service enterprise, and the owner committee has no right to exercise the rights. Second, the exercise of the right of defense must be based on honesty and credit of legal basis. Third, the realty service enterprise has the defense right of first-performance, while the owners have the defense right of simultaneous performance.In the second part, focusing on the problem of confusing defense and the right of defense in current judicial practices, the author distinguishes the difference between the defense and the right of defense, clears their nature and put forward the solutions. The emphasis in this part is owner’s defense rights and the realty service enterprise’s defense rights.In the third part, the author puts forward recommendations focusing on the defense rights in the real estate service contract. In the aspect of judicial, The author argues that we should perfect the distribution of evidential burden and the structure of the proceedings. In the aspect of regulations, the author argues that we should clear property management service quality standards and improve the publication and payment regulations. The emphasis in this part is that, through comparing different kinds of proceedings, the author suggests to introduce“ the exchange prestation judgment” in German law.