《民法典》背景下物业服务合同实务中的若干法律问题研究

Research on Legal Problems in the Practice of Property Service Contract under the Guidance of Civil Code of the People’s Republic of China

《民法典》的颁布实施使物业服务合同从无名走向有名,其作为典型合同吸纳入《民法典·合同编》,物业服务合同的有名化是我国民法典对于社会生活需要的积极回忆,具有里程碑意义,但民法典的规定仍存在着合同当事人规定不清,任意解除权规定笼统、业主抗辩权的法律规制不健全、前期物业服务合同规制不足等问题。针对目前物业服务合同中存在的问题,本文提出了明确合同当事人及业主委员会合同中地位、细化两类物业合同的任意解除权、完善业主抗辩权行使制度、加强前期物业服务合同的法律规制等建议。以期缓解业主与物业服务人的矛盾、维护业主与物业服务人双方利益,实现人民安居乐业,共创和谐社会。

With the promulgation and implementation of Civil Code of the People’s Republic of China, property service contract was gradually known and compiled as a typical contract in Contract Section of Civil Code. The legislation of property service contract is a proactive response made by Civil Code for social needs. Though it has milestone significance, there are some deficiencies in the provisions, such as the ambiguity of signing parties, the unspecific definition of arbitrarily relieved right, the unsound legal regulation for owner’s right of defense and the insufficient rules for normalizing the early contracts. In view of these problems existed in current property service contract, this paper puts forward some suggestions, such as clarifying the status of the contract parties and the owners’ committee, elaborating the arbitrarily relieved right of the two types of property contracts, improving the exercise system of the owners’ right of defense and strengthening the legal regulation of the early property service contract, attempting to alleviate the contradiction between owners and property service personnel, to safeguard the interests of both owners and property service provider, to ensure that people live and work in peace and contentment, and eventually create a harmonious society.