| In the 1980, the modern system of "property management" was introduced into mainland China from Hong Kong. With the rise of the domestic economy and the reform of the urban housing system, domestic real estate market has developed rapidly,and the modern concept of "property management" has been introduced into China,with the momentum of integration, improvement, and development trend, changing from the previous situation of being excluded to more and more recognized and accepted by people, from big and developed cities to middle-sized and small cities,which shows a promising outlook. However, we still need to clearly recognize that due to the relatively late start in China, there must be some contradictions and deficiencies to be resolved concerning the property management, such as nonstandard charging of property management, unclear responsibilities allocation of property developers,disordered connection of preliminary and late property service contracts and so on. In judicial practice, the increasing number of property management disputes showed features of collectivity, repeatability, high cost of litigation, extreme way of protecting rights by property owners etc., thus the court in dealing with such disputes, can only cure the symptoms, not the disease, which was caught in a vicious cycle.This paper argues that the key to resolving the disputes of property management lies in the property service contract, which as the daily link of property management activities, makes up for the delays and the absence of laws and regulations to a certain extent. Therefore, this paper chooses the property service contract as the main object,gives detailed introduction to the concept, features and properties of property service contract. Property service contract, as a new type of civil contract, has common characters with other general civil contracts, which include that both are contracts concluded between equal entities, and both have the particularity of the new civil contracts. In practice, the property service contract gives full play to its particularity to ensure the property management activities to be carried out smoothly,easing the contradictions and conflicts brought by property management disputes, however, some extrinsic factors including unsound legal environment and nonstandard property management also lead to many problems, such as the status of the subject, content bias,breach, termination of contract and contract defense issues etc. In light of the status quo,this paper, through specific analysis on the practice of dealing property management disputes by court, suggests that the property service contract as a civil contract, should give full play to its own peculiarities to prompt the property management companies to relocate and improve the quality of property services. At the same time, it also puts forward some suggestions on how to solve the property management disputes, by learning from foreign advanced approaches and combining with China's actual situation.To solve the problems fundamentally, this paper should focus on the property service contract, by placing it at the core position of property management activities, and then propose specific ways to improve. First, nomination of the property service contract. In general, the property service contract is under the General Provisions of Contract Law,and can use it freely on legal applications, but due to the relatively broad contents and services, property service has a lot of types, of which each type is applicable to different legal rules. This makes the judicial practice very complicated and difficult to operate,and hardly meet the practical needs, only based on the General provisions of Contract Law. Therefore, it's suggested in the paper that the property service contract should be nominated with its nature clearly and specifically defined in the law, to provide the court with precise legal basis for such cases of disputes in the future; Second, to improve the property service's charging system. The current cost of property services, as an important source of funds for the survival of most property management companies,is also one of the important reasons of continued conflicts between property owners and services providers. Once the charging issues of property services is not handled properly,it is the property owners that are subject to loss. Therefore, as it is suggested in this article, the charging system of property services should be improved to be institutionalized and legalized as soon as possible; Third, the aspect of the burden of proof. In accordance with Several Provisions of the Supreme People's Court on Evidence in Civil Procedures, in the event of a dispute in the course of contract implementation, the obligor shall bear the burden of proof. This means that, under normal circumstances, the burden of proof is borne by the property services providers,but property service is broad, complex, trivial, without any national standards of the service quality, which is difficult to be measured, thus most of the times, it's difficult for the property services providers to put to the proof. Therefore, it's suggested in this paper the case-by-case treatment, balancing the interests of both sides; Fourth, recognition of the status of legal subjects of Owers Committee. Owners Committee, as the executing agency of Owners Meeting,plays an important role in solving the property management disputes, however, the current laws and regulations of China do not confer on clear status of legal subjects to the Owners Committee. In case of the common interests of all the owners being harmed,the Owners Committee could not file a suit in their own name,thus the interests of owners cannot be guaranteed. Therefore, this paper suggests that,the status of legal subjects of Owners Committee, as well as its independent litigation subject qualification should be legally recognized, to give full play to the linking role of Owners Committee in dealing with property management disputes; Fifth, to separate the construction and operation work of property developers and property management companies. At present, China's property services companies mostly belong to the developers or its subsidiary companies with the "mother-child relationship", which may lead to the false transfer of responsibilities of the property developers to the property management companies by property owners, while the property management companies fail to effectively address the problem,thereby intensifying conflicts. It,s suggested in this paper that, the developers and property service providers should be separated in the form of law, with their responsibilities, rights and interests clearly defied, so as to effectively avoid conflicts and disputes; Sixth,to carry out a variety of operations. At present, China's property service companies rely mainly on property service fees to maintain the operation, once the owners refuse to pay, the property services companies feel hard to maintain long-term operation, and have to appeal to the court, which increases the escalation of disputes. Thus it's concluded in this paper that property service providers can diversify operations to increase revenue sources in order to improve the service level and quality, and to make up for the lack of the operating funds of property services; Seventh, to establish and improve the administrative mediation system. Judicial relief is the last line of defense, in prior to which, the power of relevant government departments, namely, the administrative mediation, should be utilized. fully to resolve contradictions and disputes. |
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