For the previous property management system legal issues Discussion（以前的物业管理系统法律问题的讨论）

1、 For the previous property management system legal issues DiscussionAbstract: The preliminary property management of the owners, the owners meeting before hiring a property service enterprises by the construction unit selection of property services enterprises property management, property managemen

2、t as an emerging industry in China is still in the stage of development in its gradually maturing process has also revealed that many deep-seated legal issues facing many problems in trial practice. the status of subject of the preliminary property management legal relationship and the rights and ob

3、ligation, the previous property management system specification, the developer liability in the previous property management problems these issues cause a lot of reality disputes to be investigated from the legislation, management systems and legal responsibility to improve the previous property man

4、agement become necessary. Thesis Keywords: pre-property management, legal relations, legal liability Preliminary property management of the owners, the owners meeting before hiring a property service enterprises by the construction unit selection of property services enterprises property management,

5、 property management as an emerging industry in China is still in development stage, and gradually becoming more mature in its also exposed many deep-seated legal issues, the process also faces many problems in trial practice in recent years, in practice, the preliminary property management disputes

6、 are increasingly common, and it is the case as a new type of hearing difficulty administrative regulations of the PRC on Property Management Ordinance, introduced in China in 2003, the end of the deficiencies of previous property management >> of << Property Law of the Peoples Republic

7、of China was promulgated in 2007, established the Chinas buildings distinguish between ownership of the system, Subsequently, the PRC on Property Management Ordinance amendments and supplements to strengthen the management of preliminary property construction unit, the property management into the l

8、egal system to effectively regulate the pre-property management market. practice, the previous property management system there are many legal issues, these problems have seriously restricted the sustained and healthy development of the property management industry in China. previous property manage

9、ment system, what are the problems? paper on these issues with a shallow comb. First, the status of subject of the preliminary property management legal relationship and rights and obligations not It can be seen from the above analysis, based on our current property management regulations, the main

10、body of the previous property management legal relationship involving developers (construction unit), the buyers (owners), the pre-property services company tripartite. Preliminary property management legal relationship is a kind of civil legal relations, then the related civil activities must follo

11、w the basic principle also applies to the preliminary property management, so it should also follow the principle of equality, voluntariness and property services company as an independent party, accept the developers commissioned with the developer the legal status of equality, but also whether to

12、accept commissioned by the will of freedom, however, is not the case in practice, independent of the property services business model in China is not much. , Subordinate units or subsidiaries of a large number of property services companies are real estate development enterprises, does not have a re

13、al sense of the legal character of the independently operated, may be subject to the developer, development projects in the planning, design, construction phase leaving problems in the owner occupancy gradually exposed, causing the dissatisfaction of the owners of the property management, the pre-pr

14、operty management system is difficult to ensure that both parties in the contractual relationship of the commissioned real achievement of equality and voluntary, which planted a series of disputes risks. From this perspective, the new owners of select property management, legal acts, not to mention

15、an equal and voluntary, which also shows a property services companies and buyers who are also unequal. The most central part of the legal relationship and rights and obligations of both parties have the freedom to negotiate and determine the respective rights and obligations in the legal relationsh

16、ip, this is also the parties the legal status of equality and freedom of the will embody. Based on the aforementioned the inequality of legal status, rights and obligations of both consultations are difficult to achieve consistent and peer on the one hand, due to the non-independence of the property

17、 services company, making the property is difficult to truly should exercise the right to another between home buyers and property companies, rights and obligations it is difficult to truly peer-to-peer practice, the two sides do not exist the opportunity to negotiate the rights and obligations of b

18、oth parties. buyers in the purchase signed “unequal” treaty. the reality of the conflict precisely because of lack of full negotiation and consultation, rights and obligations of the malformation and variation between property companies and owners, directly led to contradictions. Second, the previou

19、s property management system is not standardized The statutory elements of the preliminary property management involves many aspects, including the prophase realty service contract, temporary statute, preliminary property management bidding, the property to undertake inspection procedures, the trans

20、fer of property information, the contents of the property management space, property warranty. This article to analyze several aspects of the previous property management practices, there are more disputes: First of all, the problems of the prophase realty service contract. previous property managem

21、ent contracts, refers to the owners of property within the region, the owners meeting before hiring the property services business, property management contract it signed by the property services business of real estate developers and their selection is to determine the specific rights and obligatio

22、ns of the owners and the previous property services company, to ensure that one of the preliminary property management activities to achieve the most basic legal document. I think, >> << Property Law in China-based preliminary property management contract for the owners the legal effect

23、of the condominium ownership regime. condominium ownership transfer, mortgage, inheritance, the assignee at the same time to obtain this three rights in the sales property before the developer is the sole owner of the property, in accordance with condominium ownership theory, it certainly has the ri

24、ght selection of property services companies and with the signing of the preliminary property management contract. Share began to disperse transferred to the owners in the form of free paper download center in property sales, developers, property ownership to the building to disti

25、nguish between ownership, the owners from the developer not only successors exclusive part of the ownership of the building, at the same time, following by the co-ownership and a member of the right, in theory, the prophase realty service contract with the owners the legal effect, however, as the de

26、veloper for sale real estate, gradually set up a construction distinguish between objects of ownership, the right to manage the district is still only one, by the developer alone enjoy, in fact, the preliminary property management phase of the owners have the right to manage does not actually exist,

27、 not to the real exercise, due to the pre-property The management of stage management rights by the developer exclusive Therefore, the owners do not have the right to discharge the prophase realty service contract, the termination of the contract right in the prophase realty service contract for the

28、 transfer process and not transferred to the owners, that is, the owners do not have buildings to distinguish all form of management rights, there can be no exercise of the right to contract relief. Secondly, the temporary existence of the Statute. temporary management rules by the developers develo

29、ped prior to the sale of properties, safeguard the legitimate rights and interests of all the owners of property, to protect the security of the property reasonable use maintenance of public order and create a good environment, and constraints of all owners of previous property management activities

30、 as mutually agreed, the Constitution of the district early management of the property management phase, it can be said that the temporary management rules is to regulate the pre-property management activities, identify the owners and property services companies fundamental document of the rights an

31、d obligations. However, neither the developers or owners of the great importance of the Provisional Statute are not enough, the unique position to develop this document against the interests of owners of things in the current status quo of the previous property management system, developers, propert

32、y companies not uncommon at this stage of the pre-Property Management, the owners committee has not yet been established, the Provisional Governing Statute, also developed by the construction unit. practice, there are developers operating income to supplement the management service fees, then the Pr

33、ovisional Statute of the terms of the agreement the property services business has the right to a shared supporting facilities of the business district, shared premises, but also the right to the income of the operation into property services companies. Therefore, in the absence of the true owner of

34、 the property - owners, prepared by the construction and property services companies is open to question the fairness of the Provisional Statute Finally, preliminary property management bidding problems in the developer of one-sided emphasis on the autonomy of control over the operation and manageme

35、nt, thus ignoring the foreign property services companies in the property management work in the pre- an active role and also hope to use their own property services company, to ease the real estate during the transition may be due to the quality and other problems caused by contradictions, and to c

36、over up the problem through their own property services company, blinded cross the border rather than solve the problem of the owners into lived before. to obtain the greatest economic benefit, developers are unwilling to be the profits of their development projects, property management, transferred

37、 to other property services companies. above aspects led directly to the developers to take unfair competition in the bidding means there are a lot of bidding muse operating behavior due to the existence of local protectionism, local government, relevant departments or developers, starting from the

38、region or sector interests, uncooperative, or proposed harsh conditions, so that cross-regional property management bidding difficult. even influential leading property services company, the management can not be due to the successful tenderer after the normal conduct of, but unfortunately was force

39、d to withdraw, even worse, developers use the form of bidding to cheat property services companies to tender and management solutions, excuses or justification for the establishment of property services companies to take over the property, the management scheme to cheat to manage the operation, or the first use of the influence of foreign brand-name property services companies to help their own property launch or pre-management operations, the management of normal, finding excuses to