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Chapter 47 Questions and Answers on the Evidence of Disputes over House Sale and Demolition (13)
No.30 Article [-] If Party B violates the provisions of Articles [-] and [-] of this contract and raises the standard of property service fees without authorization, the owner and the property user have the right to refuse to pay the excess part; The right to ask Party B to double return.

No.30 Article 17 If Party A violates the provisions of Article No.[-] of this contract and refuses or delays in performing the warranty obligation, the owner or property user may repair by himself or entrust Party B, and Party A shall bear the repair cost and other losses caused.

No.30 Party B shall not be liable for the following four situations:

1. The property management service is interrupted due to force majeure;

2. Party B has performed the obligations stipulated in this contract, but losses are caused by the inherent defects of the property itself;
3. Due to the maintenance and maintenance of common parts of the property, shared facilities and equipment, and the owners and property users have been informed in advance, temporary water supply, power outage, and use of shared facilities and equipment have caused losses;
4. Water supply, power supply, gas supply, heat supply, communication, cable TV and other common facilities and equipment operation obstacles caused by failure of Party B;
5 .。

Property Management Regulations Chapter 9 Other Matters

No.30 Article [-] The term of this contract is from year, month, day to year, month, day; however, within the term of this contract, when the property service contract signed by the owners' committee on behalf of all owners and the property management company becomes effective, this contract will be automatically terminated.

No.30 Article [-] If the owner’s meeting has not been established one month before the expiration of this contract, both parties A and B shall reach an agreement on extending the term of this contract; property management company.

No.30 Article [-] When this contract is terminated, Party B shall promptly and completely hand over the properties owned by all owners, such as the property management room and relevant materials of property management, to the owners committee; if the owners committee has not been established, it shall be handed over to Party A or the first generation.

No.30 Article [-] The property sales contract signed by Party A and the property buyer shall include the content agreed in this contract; the signing of the property sales contract by the property buyer is a commitment to accept the content of this contract.

No.30 Article [-] The property owner may agree on the rights and obligations of this contract with the property user, but if the property user violates the contract, the property owner shall bear joint and several liabilities.

No.40 The annex to this contract is an integral part of this contract and has the same legal effect as this contract.

No.40 Article [-] For matters not covered in this contract, both parties may sign a supplementary agreement in written form. If there is any conflict between the supplementary agreement and this contract, this contract shall prevail.

No.40 Article [-] Disputes arising during the performance of this contract shall be resolved through negotiation between the two parties. If the negotiation fails, both parties may choose the first method below:
1. Apply for arbitration to an arbitration committee;
2. File a lawsuit to the people's court.

No.40 Three copies of this contract, Party A and Party B each hold one copy.

Party A (signature) Party B (signature)
legal representative legal representative
Year, month, day 50. The owner's committee and the property management company only reached an oral agreement without signing a written property service contract. Is the oral agreement legally valid?
A property management company negotiated with the owner committee of a residential community that the property management company would manage the community, and the two parties verbally agreed on service items and fees, but did not sign a written property service contract.After the property company took over the property, it found that the external facilities of the community were in disrepair and the surrounding environment needed to be cleaned up, so they carried out a comprehensive rectification of the community, and the property management company paid an advance fee for this.When the property management company announced to increase the service fee, the owner pointed out that the property service fee agreed orally was not so high, and refused to pay the excess service fee.The property management company then filed a lawsuit in the People's Court.

Analysis according to law
In this case, the property management company and the owners' committee did not sign a written contract, so the two parties had different understandings on the scope of property management. The property management company's rectification of the community is within the reasonable scope of daily management, and the expenses paid are reasonable and justified , the owner of the residential area shall pay the property management company the overspending expenses.

According to the theory of contract law, property service contract is an independent type of contract, which belongs to the category of anonymous contract in contract law.The property service contract is similar to the entrustment contract in the contract law, but also has its own distinct characteristics. Article 10 of the "Contract Law" stipulates: "The parties can conclude a contract in written form, oral form and other forms. If laws and administrative regulations require written form, it shall be in written form. If the parties agree to use written form, it shall be in written form." .”

Although it is convenient and quick to conclude a contract in oral form, since there is no necessary written evidence, once a dispute arises, it is difficult for the parties to provide evidence, and it is difficult for the judiciary to find out the truth.However, when a written contract is concluded, the rights and obligations of both parties are recorded in written form, and when a contract dispute occurs, there is evidence to check, which is convenient for distinguishing responsibilities.The property service contract is an important basis for determining the rights and obligations of the property owner and the property management enterprise in property management activities. Whether the contract is concluded according to law, whether the content is detailed, and whether it is operable is of great importance to safeguard the legitimate rights and interests of both parties in property management activities.Therefore, Article 35 of the "Regulations on Property Management" stipulates: "The owners' committee shall sign a written property service contract with the property management company selected by the owners' meeting. The property service contract shall specify property management matters, service quality, service fees, and the rights of both Obligations, management and use of special maintenance funds, property management premises, contract period, liability for breach of contract, etc.

So, if the property management company and the owners' committee did not sign a written contract, but only reached an oral agreement, what are the legal consequences? The "Regulations on Property Management" does not provide for this. According to the provisions of Article 52, Item 5 of the "Contract Law", a contract that violates the mandatory provisions of laws and administrative regulations is invalid.However, if the form of the contract violates the provisions of laws and regulations, it does not necessarily lead to the invalidity of the contract. Article 36 of the "Contract Law" stipulates: "If the law, administrative regulations or the parties agree to conclude a contract in written form, if the parties have not adopted a written form but one party has performed its main obligations and the other party accepts it, the contract is established." In this case, the parties The two parties negotiated the property management matters in oral form, but did not conclude a written contract, which violated the provisions of Article 35 of the "Property Management Regulations". However, the property management company managed the property and fulfilled the obligations agreed by both parties, and the owner also accepted the property management. According to Article 36 of the "Contract Law", the oral agreement has legal effect.

Property management enterprises shall provide corresponding services in accordance with the stipulations in the property service contract. The matters of property management generally include the following aspects: (1) the use management, maintenance and update of common parts of the property, equipment and facilities; (2) environmental sanitation, greening Management services; (3) Public order, public security management, such as access management, vehicle parking management; (4) Property file data storage services.Of course, in addition to the above-mentioned management matters of a public nature, individual owners can also entrust property management companies to provide special special services. Article 44 of the "Property Management Regulations" stipulates: "Property management companies may provide property management services other than those stipulated in the property service contract according to the entrustment of the owners. The service items and service remuneration shall be agreed upon by both parties." In this case, the property management company repaired the external facilities of the community that had been in disrepair for a long time, and cleaned up the surrounding environment of the community, which belonged to daily management services, and the management fees paid in advance for the rectification of the property were reasonable and reasonable. Justification, the owner should bear the cost of the overrun.

tips

So how to determine the property service fee?Who pays the property service fee?What legal responsibility should be borne by those who do not pay property management fees?

Property service charges shall follow the principles of reasonableness, openness, and fees commensurate with the service level, distinguishing the nature and characteristics of different properties, and the property owners and property management enterprises shall follow the property service charge method formulated by the competent pricing department of the State Council in conjunction with the construction administrative department of the State Council. stipulated in the property service contract.The property owner shall pay the property service fee in accordance with the stipulations in the property service contract.If the property owner and the property user agree that the property user shall pay the property service fee, the property owner shall be jointly and severally liable for the payment according to the agreement.For properties that have been completed but have not been sold or handed over to the property buyer, the property service fee shall be paid by the construction unit.If the owner violates the property service contract and fails to pay the property service fee within the time limit, the property owner's committee shall urge him to pay within the time limit; if he still fails to pay within the time limit, the property management enterprise may sue in the people's court.

Real estate disputes in marriage and inheritance

51. How to collect evidence materials related to foreign countries, warehouses, Macao and Taiwan?
The defendant and the plaintiff are uncles and nephews. The ancestral house shared by the plaintiff and the defendant is located in the neighborhood committee of Taoxi Village, Taocheng Town, Y County. The real estate in dispute in this case is one of the ancestral houses.During the land reform, the property rights of this house shall be declared.The house in dispute in this case was registered in the land register as owned by the plaintiff's father, but no title certificate was obtained.The plaintiff's parents lived overseas before liberation, and the plaintiff also lived overseas since childhood.The house in dispute was inhabited by the defendant's father and grandparents for a long time before liberation.The plaintiff's parents died of illness in 1986 and 1990.After the plaintiff learned that the defendant lived in his father's estate in China (that is, the house in dispute), he entrusted Liu to take back the house in dispute from the defendant in April 2004, but failed.Liu, the plaintiff's authorized agent, brought a lawsuit to Y County Court on July 4, 2004, and provided the "land and real estate inventory" that was declared and registered during the land reform. The "agreement" of the matter, the land and real estate certificate, and the power of attorney notarized by the Indonesian notary department of the country where the plaintiff is currently living and certified by the Indonesian Ministry of Foreign Affairs and confirmed by the Chinese Embassy in Indonesia are used as evidence.

Analysis according to law
During the trial of this case, the biggest dispute between the two parties was whether the entrustment procedures for the plaintiff to entrust Liu to file a lawsuit were legal.The basis for the plaintiff’s agent to file the lawsuit on behalf of the plaintiff is the power of attorney issued by the plaintiff and notarized by the Indonesian notary department, certified by the Indonesian Ministry of Foreign Affairs, and confirmed by the Chinese embassy in Indonesia.This is a power of attorney from outside China, which belongs to the category of foreign-related evidence.Then, how does the evidence from outside China play the role of proof, and what proof procedures should be performed?
Evidence is the basis for the people's court to confirm the facts of the case in the trial of civil cases.In foreign-related civil litigation, because one or both parties to the case are foreigners, foreign enterprises or organizations, or the legal facts of the establishment, modification, and termination of the civil legal relationship between the parties occurred in a foreign country, or the subject matter of litigation disputed by the parties is in a foreign country, It is therefore inevitable that some of the evidence was formed abroad.For example, if the relevant documentary evidence is formed outside my country, the parties concerned shall provide witness testimony of foreigners or residents of Hong Kong, Macao and Taiwan.Since these evidences were produced outside my country, there is a great risk that the people's courts will confirm the validity of these evidences.Therefore, it is necessary to restrict the procedures and formalities of the evidence provided overseas to enhance its authenticity and legitimacy, and to eliminate as much as possible the adverse effects of the geographical limitations of judicial power on civil proceedings.

According to the provisions of Article 242 of my country's "Civil Procedure Law", foreigners, stateless persons, foreign enterprises and organizations without a domicile in my country entrust Chinese lawyers or other persons to represent them in litigation, and the documents sent or entrusted from outside the territory of my country The power of attorney shall not be effective until it has been certified by the notary office of the country where it is located, authenticated by the Chinese embassy or consulate in that country, or has completed the certification procedures stipulated in the relevant treaty concluded between my country and the country where it is located.Accordingly, a foreign party without a domicile within the territory of my country must go through the procedures of notarization and authentication when submitting a power of attorney.According to the provisions of Article 59 of my country's "Civil Procedure Law", the power of attorney sent or entrusted by Chinese citizens living abroad must be certified by the Chinese embassy or consulate in the country; The certificate of the embassy or consulate of a third country that has diplomatic relations with my country, and then the certificate of the Chinese embassy or consulate in the third country, or the certificate of a local patriotic overseas Chinese group.This is a modified regulation for Chinese citizens living abroad.Chinese citizens residing abroad are not foreigners, but the power of attorney sent or entrusted by them from abroad is still evidence formed outside China in nature, so certain procedures must also be performed.However, the object of the above provisions is only the power of attorney of the parties concerned, and there is no special regulation on the examination and determination of evidence materials related to the facts of the case in practice.As for overseas evidence, only Article 68, Paragraph 2 of the Civil Procedure Law stipulates that "documentary evidence in a foreign language must be accompanied by a Chinese translation."

According to Article 11 of the Supreme People's Court's "Several Provisions on Evidence in Civil Procedures", the evidence provided by the parties to the people's court is formed outside the territory of our country. The embassy shall authenticate it, or perform the certification procedures stipulated in the relevant treaty concluded between my country and the country where it is located.The evidence provided by the parties to the people's court was formed in Hong Kong, Macao, and Taiwan, and relevant certification procedures should be performed.This provision is basically the same as Article 242 of the Civil Procedure Law, but the scope of application is expanded from the power of attorney to all evidence materials, including evidence proving the qualifications of the parties and the entrusted matters, as well as evidence proving the facts of the case.If the party concerned provides the people's court with evidence formed outside my country, the evidence shall be certified by the notary office of the country where it is located (if there are materials in a foreign language, a Chinese translation shall also be attached) and certified by the Chinese embassy or consulate in the country , to be effective.Chinese embassies and consulates abroad include embassies, consulates general, consulates, etc., which are the institutions that my country performs foreign-related notarization and certification functions abroad.In Chinese consulates abroad, the department that performs the function of foreign-related notarization and certification is the consular department. Other departments in diplomatic embassies, such as the education department, cultural department, and commercial department, have no right to issue foreign-related notarization and certification documents.If the relevant treaty concluded between our country and the host country stipulates the certification procedures of evidence, it can be handled according to the provisions of the treaty.The procedure requirements for notarization and authentication are as follows: first, the foreign notary notarizes the relevant overseas evidence, then the relevant foreign officials authenticate the notary’s qualifications and signature, and finally the officials of the Chinese consulate abroad authenticate the signature of the foreign official .

In this case, the power of attorney that the plaintiff entrusted agent Liu to file the lawsuit on his behalf was certified by the Ministry of Foreign Affairs of Indonesia after notarization, and certified by the Consular Department of the Embassy of the People's Republic of China in Indonesia. The provision of proof procedures that should be fulfilled for the provision of evidence should therefore be deemed legal and valid.

tips

So how should the certification procedures of the evidence formed in Hong Kong, Macao and Taiwan be carried out?

Paragraph 11 of Article 2 of the "Regulations on Civil Evidence" stipulates that the evidence formed in Hong Kong, Macao and Taiwan should go through the corresponding certification procedures.Specifically, when Hong Kong and Macao residents submit evidence to the people's courts from Hong Kong and Macao, they generally go through the certification procedures in accordance with the following regulations before it can become effective: (1) Members of Hong Kong Federation of Trade Unions, Macau Federation of Trade Unions and other social organizations, the organizations they belong to shall issue certificates; (2) Other Hong Kong and Macao residents may apply for certificates from Hong Kong lawyers entrusted by the Ministry of Justice of my country.

If a Taiwan resident submits evidence to the people's court from the Taiwan region, if there is a certificate from a Taiwan notary office, the people's court will recognize its validity.The notarial certificate issued by the notary office is an important basis for the people's courts to determine the facts in Taiwan-related cases.In addition to certification documents issued by notarization agencies or other non-governmental organizations, lawyers' investigation and evidence collection have played a special role in Taiwan-related cases.Some law firms in the mainland have entered into agreements with law firms in Taiwan to establish business contacts, and may entrust Taiwanese lawyers to conduct investigations and certifications.If there is no certifier in this regard, their relatives and friends in the mainland can identify the handwriting of the written materials, and the people's court will confirm their validity after reviewing them correctly.

52. How to prove the investment in buying a house before marriage?
Zhang and Ge met through a friend's introduction and developed a romantic relationship.In order to get married, the two bought a house in a certain garden with a loan.The payer listed on the invoice of this house and the passbook of the house purchase loan are all in the name of Ge Mou.Shortly thereafter, due to various reasons, Zhang and Ge decided to break up.The two parties are going to court for property.

Zhang sued, claiming that he purchased the real estate with all his own funds.However, Zhang has never provided evidence that he independently funded the purchase of houses and decoration.

Analysis according to law
In this case, since the payer's name on the receipt is the name of Zhang's girlfriend Ge, if Zhang sues, he will eventually lose the case due to insufficient evidence.If the facts stated by Zhang are true, it is recommended that Zhang obtain further evidence.At present, the only direct evidence that can prove Zhang's contribution is only Ge.Zhang can ask her to repay directly. If she does not agree to repay, she is required to produce written materials acknowledging the fact that Zhang has contributed capital.

(End of this chapter)