Analysis Of The Owner's Right Of Defense

the owner refuses to pay the property fee as a defense to the property company's right to claim payment.The owner's right of defense is not an independent right given to the owner by legislation,but a specificization of the owner's right in the judicial ruling in accordance with the principle of reciprocity between the parties to the contract.The Interpretation of Several Issues Concerning the Specific Application of the Law in the Trial of Property Service Disputes Cases issued by the Supreme People's Court in 2009 provided a basis for the exercise of the owner's defense right in the form of legislation.Article 5 states: "Property service companies violate property service contracts As stipulated or stipulated by laws,regulations,and department rules,if the owner expands the scope of charges,raises the standard of charges,or repeats charges without authorization,the owner shall defend against the violation of charges,and the people's court shall support it." Article 6 states: " After a written reminder,The owner refuses to pay the property fee without proper reasons or fails to pay the property fee within a reasonable period of time.If the property service company requests the owner to pay the property fee,the people's court shall support it.The property service company has provided services in accordance with the contract and relevant regulations.The owner only The people's court does not support the defense on the grounds that they have not enjoyed or need to accept the relevant property services." The above two clearly stipulated the conditions and restrictions on the exercise of the owner's right of defense,and provided a basis for the settlement of property service disputes.However,these two clauses limit the exercise of the owner 's right of defense to the scope of “illegal and illegal charges” and “justified grounds”.The “justified grounds” provision is too vague and fails to comprehensively cover the complex situation in judicial practice and cannot comprehensively address the current situation.There are disputes.Academics and judicial practice have disputes on whether the owner should enjoy the right of defense,whether the right of defense should be exercised by the owner alone or by the owner's committee,how to define the legitimate reasons for exercising the right of defense,the burden of proof,and other issues,leading to the issue of different judgments in the same case.The research scope of this article is limited to the issue of the exercise of the owner's right of defense in property service disputes,and does not involve the exercise of the right of the owner's defense in the relationship of house sale.It mainly includes the following four parts,by clarifying the nature of the owner's right of defense,how to exercise it,and how to improve it in order to regulate the development of the property service industry.In the first part,through the analysis of the two cases involving the owner's right of defense in judicial practice,the author points out that the owner's right of defense has different judgments in the same case,and the standard of judgment should be unified.The first part analyzes the two cases involving the owner's right of defense in judicial practice,which leads to the problem that the owner's right of defense has different judgments in the same case,and unified judgment standards are needed.In the second part,the academic circles have different views on the existence or non-existence of the owner's right of defense.In-depth analysis of basic theoretical issues is required.Owner's right of defense arises based on legal provisions and contractual agreements.Due to the continuous and continuous characteristics of property services,the nature of the right of the owner's right of defense should be the right to perform the right of defense at the same time.According to the extraterritorial legislative practice,the experience of judicial precedents,and the needs of China's judicial practice,the owners' committee can be identified as a professional service organization in an unincorporated organization provided for in Article 102 of the General Principles of the Civil Law to determine its subject qualification to participate in the litigation The academic circles dispute the subject of the owner's right of defense.The third part,through the empirical analysis method,selects the case of Nanjing Property Service Dispute between 2017 and 2019,and uses the case as a clue to classify and summarize the main defense issues raised by the owner.Based on this,the definition of "justifiable reasons" is mainly made from the following three aspects: Firstly,it is to distinguish whether the cause of defense raised by the owner and the property company's claim belong to the same legal relationship.The second is to analyze the rationality of property service quality defects as legitimate reasons,and use the contract obligation construction theory as the starting point to further clarify the standard for identifying property service quality defects in practice.The third is to determine whether other specific reasons for the defence are legitimate reasons,such as the issue of inadequate security services,service contracts not in compliance with legal requirements,the property company's failure to obtain a qualification certificate,the property company's forced water and power outages,and the property company's lawsuit overdue.If the owner's defense reason really fits the scope of legitimate reasons,according to the principle of "quality and price match",sort out and analyze the "discount" range of property costs in different situations in practice.The fourth part,while the owners' awareness of rights protection is gradually increasing,some of the defense reasons put forward by some owners are not justified,which causes the problem of power abuse.In addition to the restrictions on the exercise of the owner's right to defense clearly stipulated by law,the factual property service relationship should also be determined as one of the restrictions.The fifth part,by clarifying the problems existing in the exercise of the owner 's defense right in China,the “legitimate reasons” for the exercise of the owner 's defense right are clearly defined in the legislation,the experience of extraterritorial property service legislative experience,and the improvement in the exercise of the owner 's defense right.We set out to provide suggestions for improving the owner's right of defense system and balance the relationship between the owner and the property service enterprise.