Research On The Exercise Of Owners’ Defense Rights In The Performance Of Property Service Contracts

The continuous advancement of urbanization in China has led to a gradual shift in people’s living patterns from single family to differentiated ownership of buildings.Property service contracts have emerged and become the most important form of property management.However,due to the particularity of the legal relationship in property services and the lag of industry regulations,there are actually situations where some property service providers do not meet the quality standards or even neglect to provide property services,resulting in an increasing trend of disputes caused by property service defects year by year.In such cases,homeowners often seek relief by refusing to pay property fees,and the nature of this behavior should be the exercise of the right to defend contract performance.In judicial practice,courts hold a cautious attitude towards the exercise of owners’ right to defense,often denying the exercise of owners’ right to defense on the grounds of safeguarding public interests.However,the maximization of group interests does not necessarily negate the exercise of individual owners’ defense rights at the expense of individual interests.On the surface,it appears to safeguard the common interests of owners,but in reality,it harms the legitimate rights and interests of each owner.The owner’s right of defense in the performance of property service contracts should have a certain applicable space and be able to play its functions of enhancing performance and assisting relief.Therefore,this article focuses on the exercise of homeowner’s right to defense as the main research object,with the flawed performance of property service providers as the main direction for exercising homeowner’s right to defense.On the premise of clarifying relevant theoretical obstacles,based on empirical analysis of132 eligible cases,it carefully examines the current judicial practice status and problems of homeowner’s right to defense,and proposes improvement suggestions for this article in response to the four mists in the exercise of homeowner’s right to defense,In order to be helpful in resolving such property service disputes.In addition to the introduction and conclusion,this article mainly includes three parts:The first part is the basic theory of the exercise of the owner’s right of defense in the performance of property service contracts.This section follows the logical order of the owner’s right to defense in theory from "whether it exists" to "where it exists" to "how it exists",and analyzes and discusses in sequence.Firstly,it analyzes the issue of whether the right to defense in contract performance can be applied in the field of property service contracts,and points out that the continuity characteristics of property service contracts have not fundamentally shaken their involvement as dual service contracts,There is a foundation for the exercise of the owner’s right of defense in the performance of property service contracts;Secondly,starting from the origin of the defense system and the separation of defense rights and defenses,a thorough analysis was conducted on the relationship and differences between the owner’s defense,the owner’s factual defense,and the owner’s defense rights.In a broad sense,the owner’s defense includes two specific forms: the owner’s factual defense and the owner’s defense rights.Among them,the violation fee defense is not the owner’s defense rights,but should belong to the owner’s factual defense,The significance of the distinction between the owner’s factual defense and the owner’s right of defense mainly lies in whether the judge can apply it on his own initiative and whether the defense can eliminate the corresponding Cause of action;Finally,a theoretical exploration is conducted on the subjects and types of the exercise of the owner’s right of defense,and it is pointed out that the owner’s right of defense is limited to the simultaneous performance of the right of defense and the first performance of the right of defense in this article.However,a strict distinction between them is not the key to studying the exercise of the owner’s right of defense.The second part is about the current situation and problems of the exercise of the owner’s right of defense in the performance of property service contracts.Based on the analysis of 132 qualified sample cases,this section divides the empirical investigation of the exercise of the right of owner’s defense into two levels:formal and substantive.At the formal level,first,it sorts out the two major manifestations of the exercise of owner’s defense in judicial practice;Secondly,taking specific cases as an introduction,the reasons for exercising the owner’s right of defense are further divided into nine specific categories,and their specific distribution is analyzed;Furthermore,a detailed statistical analysis was conducted on 132 sample cases,presenting the overall characteristics of current cases where owners exercise their right of defense in the form of statistical charts.On a substantive level,the temporary defense and relief of homeowners are in a harsh environment of four layers of fog obstacles: firstly,whether homeowners can exercise their defense rights in judicial practice,the attitudes and standards held by courts in different regions are not uniform,and there are even opposing views;Secondly,there is an ambiguous relationship between the exercise of the owner’s right to defense and the reduction of property fees.The unclear relationship between the two actually blurs the exercise of the owner’s right and the application of rules;The third is the judgment of the degree of defects in property services,and the judgment standards for similar facts by courts in different regions are not unified,which essentially expands the uncertainty of the exercise of the owner’s right to defense;The fourth is that the burden of proof for the exercise of the right of defense by property owners in litigation is too heavy,which is reflected in three aspects: difficulty in quantifying evidence of property service defects,limited ability of individual property owners to provide evidence,and difficulty in providing evidence for individual property owners due to poor information utilization by property service providers.The third part is about the improvement path for the exercise of the owner’s right of defense in the performance of property service contracts.This section proposes solutions to address the four layers of confusion surrounding the exercise of owners’ defense rights.Firstly,it is necessary to affirm the subject status of the exercise of individual owners’ defense rights,clarify that the conditions for exercising owners’ defense rights are limited to serious or fundamental breaches in self interest defense and collective interest defense,and explore parallel solutions for collective exercise of owners’ defense rights;Secondly,the nature of the judicial discretion of property fees should be the "off balance" way in Article 577 of the Civil code,and its essence is derived from the right of price reduction in Article 582 of the Civil code.When the owner’s right of defense and the right of price reduction are claimed at the same time,the exercise of the owner’s right of defense has the function of assisting the realization of the remedy for breach of contract;Furthermore,when determining the form of breach by property service providers,factors such as contract agreements and local standards can be taken into account to comprehensively examine the conditions,process,and effectiveness of property service providers’ provision of property services,and to make a differential judgment between self interest defense and co interest defense;Finally,in the event of defects in property services,the burden of proof should be balanced.For disputes over property service contracts,evidence that is difficult for owners to obtain and mainly in the hands of the property service provider should be provided by the property service provider.If the evidence cannot be provided,the property service provider should bear the adverse consequences.In addition,judges can also obtain evidence on their own authority or application,and can also conduct on-site investigations in residential areas to investigate the facts of the case and comprehensively determine the degree of defects in property services.