物业服务合同性质辨析——兼谈无名合同有名化问题

Differentiating and Analyzing the Nature of the Estate Management Contract

物业服务合同作为一种新型合同,理论与实务界由于对其性质的不同认识,导致在对合同主体、客体、合同解除权等问题上众说纷纭以及对该类纠纷法律适用的各行其是。物业服务合同作为一种私法合同,由于其对传统合同理论的合同相对性原则、意思自治原则及合同效力规则等提出了挑战,具有较强的个性,应当通过单行立法实现其从无名合同到有名合同的转换,以适用社会经济生活的客观需要。

The difference in the understanding of the nature of the estate management contract as a new type of contract in the theoretical or practical area leads to all kinds of explanation about such issues as contract subject, contract object and the right to cancel a contract and the diversities on application of laws to such disputes. According to basic theories of contract laws and civil law, the paper believes that the estate management contract is a kind of private law contract first of all, and at the same time the paper believes because the estate management contracts as a new type of contract makes a new challenge to the relativity principle of the contract, the principle of will autonomy and the principle of validity of the contract of the traditional theory about contracts and has its unique characteristics, the estate management contracts as innominate contracts should be changed to typical contracts by separate legislation to meet the desirability of the social and economic life.