Study On The System Of Arbitrary Rescission Of Property Service Contract Owners

For the first time,Chinese Civil Code explains the rules of property service contract,and positively answers the disputes about its status and nature,so as to provide the basic civil law basis for its application.Although the legislation on the property service contract is constantly improving,the court is beset with difficulties in resolving the conflict between the two parties due to the large number of owners,ununified demands,unclear multi-subject status and chaotic functions,among which the exercise of the owner’s right to arbitrarily terminate the property service contract is undoubtedly one of the most hotly debated topics in the legislation of the property service contract.Different from other rescission rights,this right is a norm formed by the legislator combining the nature of collective contract and integrating the previous provisions.This makes up for the lack of legislation on property management to a certain extent,reflects the balance between the interests of the owner and the contract counterpart,and is a breakthrough and innovation of the previous cancellation right system,with unique theoretical and research value.The Civil Code not only confirms the owner’s right to terminate the contract arbitrarily,but also gives a clear answer to the specific rules of exercise.This provision provides legal basis for owners to exercise their rights.Although the Angle and starting point of the legislation have a wide range of considerations,due to the inherent limitations of the law,in the face of the complex specific practice,there are also some loopholes at the standard level,making the owners still have many difficulties in exercising the right to terminate the contract.For example,in the judicial practice,the subject is often used to negate the exercise of the right of a single owner.Beyond that,there are other legal issues still to be resolved.Therefore,this paper hopes to sort out the relevant contents of this right,explore its unique legislative system,and find the existing problems of this system by combining the current situation of legislation and practice.It is hoped to make up for the lack of legislation on the owner’s right of arbitrary termination by referring to relevant systems,so as to better implement the owner’s right of arbitrary termination and provide help for the practical community to solve relevant disputes.Apart from the introduction,the text of this paper is divided into three parts.The first part is the definition of the owner’s right to arbitrarily terminate the property service contract.Firstly,the concept and category of arbitrary termination right in contract law are defined.Due to different classification standards,arbitrary termination right can be classified in various ways.Secondly,it distinguishes the arbitrary right to rescind from similar concepts,such as the legal right to rescind and the right to terminate at any time,which confirms its important position in the system of the right to rescind.Moreover,by comparing the legal system of similar contracts,we can find the legal logic and clarify the original intention of legislation and the purpose of system.Finally,from the perspective of legitimacy and rationality,the system can make the property service personnel standardize the service behavior,assume social responsibility,but also can provide the owner to terminate the contract.The second part is to sort out the legislative process of the owner’s right to arbitrarily rescind in the property service contract,and combined with the specific cases involving the owner’s right to arbitrarily rescind in the judicial practice,pointing out the legislative deficiencies of the system.It is mainly reflected in four aspects: the subject of exercise is easy to be confused,the scope of exercise is not specific,the agreement is not clear,and the damage compensation is not perfect.The termination of a contract involves many parties,but the law is not clear about the functional positioning and legal status of each subject.The scope of the owner’s right to arbitrarily terminate is limited only from the damages and legal procedural requirements,but it may still lead to the owner’s abuse of the right to arbitrarily terminate.In addition,the form and effect of abandoning the special contract have been the hot topic of the academic debate and the focus of the judicial practice,but the Civil Code of China has not responded to this.Finally,the compensation for damages is directly related to the interests of both parties and is the key issue to be dealt with after the termination of the contract.If the division of the scope of responsibility is not clear,the property service personnel’s rights will not be reasonable relief.In the third part,the author puts forward some opinions to perfect the system of arbitrary dissolution of property service contract owners in order to provide some ideas for dealing with the disputes in the future.First of all,the subject of the owner’s right to arbitrarily rescind should be clearly defined,and the individual owner’s right to arbitrarily rescind should be denied.Secondly,in order to prevent the abuse of arbitrary rescission right,the scope of arbitrary rescission right of the owner is restricted by referring to "major cause rescission" and "principle of good faith",the basic principle of civil law.In addition,the validity of the property service contract parties determined to give up arbitrary rescission right is confirmed and expressed in a clear way.Finally,the nature and scope of damage compensation are limited to a certain extent,and the "non-attributable" causes are refined,so that the civil rights of owners and property service personnel are protected equally.