Specific Application of Law in the Trial of Disputes over Realty Services

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· Document Number:No.8 [2009] of the Supreme People’s Court

· Area of Law: Civil Law

· Level of Authority: Judicial Interpretation

· Date issued:05-15-2009

· Effective Date:10-01-2009

· Issuing Authority: Supreme People's Court

· Status: Effective

 

Announcement of the Supreme People's Court
The Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Disputes over Realty Services, which was adopted at the 1466th meeting of the Judicial Committee of the Supreme People's Court on April 20, 2009, is hereby promulgated, and shall come into force on October 1, 2009.
May 15, 2009
Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Disputes over Realty Services
(No.8 [2009] of the Supreme People's Court)
To correctly hear the disputes over realty services and protect the legitimate rights and interests of the parties concerned, this Interpretation is formulated according to the General Principles of the Civil Law of the People's Republic of China, the Real Right Law of the People's Republic of China and the Contract Law of the People's Republic of China and in light of the civil trial practices.
Article 1 A pre-completion realty service contract concluded by the builder with a realty service enterprise and a reality service contract concluded by the homeowners' association or assembly with a realty service enterprise shall be binding on the homeowners. Where any owner raises a defense under the pretext that he is not a party concerned to the contract, the people's court shall reject it.
Article 2 Where a contract or any clause thereof falls under any of the following circumstances, if the homeowners' association or any owner requests for nullifying the contract or clause, the people's court shall uphold it:
1. a contract concluded by the realty service enterprise for entrusting all realty services within the realty service zone to another party; or
2. a clause of the realty service contract about exempting the liability of the realty service enterprise, increasing the liability of the homeowners' association or owners or excluding the principal rights of the homeowners' association or owners.
The term “realty service contract” as mentioned in the preceding paragraph includes a pre-completion realty service contract.
Article 3 Where the realty service enterprise fails to fulfill or completely fulfill the repair, maintenance, management and protection obligations stipulated in the realty service contract, the relevant laws and regulations or the relevant industrial norms, if any owner requests the realty service enterprise to continue to fulfill the obligations, take remedial measures, compensate for his losses or undertake any other liability for breach of contract, the people's court shall uphold the request.
The service commitments publicly made by the realty service enterprise and the detailed rules made by it shall be a component part of the realty service contract.
Article 4 Where any owner, in violation of the realty service contract, the relevant laws or regulations or the management stipulations, commits any act impeding the provision of realty services or management, if the realty service enterprise requests the owner to restore to the original state, stop the tortious act, eliminate impairment or undertake any other civil liability, the people's court shall uphold the request.
Article 5 Where the realty service enterprise, in violation of the realty service contract or the relevant laws, regulations and ministerial rules, enlarges the charging items, raises the charging rates or charges fees repeatedly without approval, if any owner makes a claim on the ground of illegal charging, the people's court shall uphold it.
If any owner requests the realty service enterprise to return the illegally charged fees, the people's court shall uphold it.
Article 6 Where, after being advised in writing, an owner refuses to pay realty fees without any legitimate reason or fails to pay realty fees within the reasonable time limit specified in the advice, if the realty service enterprise requests the owner to pay realty fees, the people's court shall uphold it. If the realty service enterprise has provided services according to the contract and the relevant provisions, the owner's claim made on the ground that he does not enjoy or need the services shall not be upheld.
Article 7 Under the circumstances that any owner reaches an agreement with the lessee, borrower or any other realty user that the realty user pays realty fees, if the realty service enterprise requests the owner to assume joint and several liabilities, the people's court shall uphold it.
Article 8 Where the owners' assembly requests rescinding the realty service contract after the owners' assembly makes a decision on dismissing the property service enterprise according to the procedure prescribed in Article 76 of the Real Right Law, the people's court shall uphold the request.
Where the property service enterprise claims for realty fees against the homeowners' association, the people's court shall notify it to make separate claims against the owners accused of delaying the payment of realty fees.
Article 9 Where, after the rights and obligations stipulated in a realty service contract expire, any owner requests the realty service enterprise to return the realty fees that have been collected in advance for the period when realty services have not been provided yet, the people's court shall uphold the request.
Where the realty service enterprise requests owners to pay the delinquent realty fees, it shall be handled according to Article 6 of this Interpretation.
Article 10 Where, after the rights and obligations stipulated in a realty service contract expire, the homeowners' association requests the realty service enterprise to withdraw from the realty service area and to transfer the premises and other relevant facilities used for realty services, the relevant materials necessary for realty services and the special maintenance funds under its custody, the people's court shall uphold the request.
If the realty service enterprise refuses to withdraw or transfer and, under the pretext that there is a de facto realty service relationship between them, requests homeowners to pay the realty fees incurred after the rights and obligations stipulated in the realty service contract expire, the people's court shall reject the request.
Article 11 The provisions of this Interpretation on realty service enterprises shall apply to the other managers mentioned in Articles 76, 81 and 82 of the Real Right Law.
Article 12 For any realty service dispute resulting from the act of the lessee, borrower or any other realty user in violation of the realty service contract, the relevant laws and regulations or the management stipulations, the people's court shall handle it according to the provisions of this Interpretation on owners by analogy.
Article 13 This Interpretation shall come into force on October 1, 2009.
For cases for which a final decision has been made before this Interpretation comes into force, if the parties concerned apply for retrial or it is decided after this Interpretation comes into force that they shall be retried according to the trial supervision procedure, this Interpretation shall not apply.