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Chapter 45 Questions and Answers on the Evidence of Disputes over House Sale and Demolition (11)
In October 2003, Xing bought a new house for his daughter's marriage, found a home decoration department, signed a "renovation contract", and paid an advance payment of 10 yuan.After the renovation of the house was completed, Xing had doubts about the decoration materials several times because his family members had adverse reactions in the renovated new house.The newly married young couple also dare not stay because they can't bear the pungent smell. At the end of March 3, Xing commissioned the Quality Inspection Institute of the Municipal Quality Supervision Bureau to test the house that had been renovated for several months. The results showed that the indoor toxic and harmful substances far exceeded the national standard.Due to repeated unsuccessful negotiations, on March 2004, Xing sued the home decoration department to court.

Analysis according to law
According to the statistics of the World Health Organization, formaldehyde, benzene, ammonia and radioactive pollution in indoor air seriously exceed the standard, and have become a major killer threatening the health of modern humans.Since the 70s, the problem of indoor environmental pollution has attracted international attention. In the 80s, some developed countries have successively established special organizations and institutions to be responsible for air quality work. At the beginning of 2000, the first specialized indoor environment monitoring center appeared in my country, and now there are hundreds of such testing institutions across the country.A number of management methods and standards related to indoor environmental testing and governance have also been issued one after another.For decoration problems, authoritative reports can be obtained through indoor environment testing as evidence.

In this case, the decoration contract signed with a certain home decoration department is legal and valid.Since the contract stipulates that the contractor will contract labor and materials, the contractor should be responsible for the quality problems caused by the construction materials, and must ensure that the project after decoration will not affect the normal life of the household.In the house after renovation, because the harmful substances released by the decoration materials exceeded the national standard, most of the decoration items were unqualified, which made the plaintiff’s family unable to live in it, and the decoration party should bear the corresponding liability for breach of contract.Therefore, a home decoration department of the defendant should be ordered to dismantle the interior decoration materials of the plaintiff and return the decoration payment already delivered by the plaintiff.

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For the decoration of the family, how can we better protect their legal rights?
When the house owner signs a contract for the purchase of houses, building materials, furniture and decoration, if there is no clause on the indoor environment in the original contract, he needs to add an item "must meet the national indoor ambient air quality standards".When purchasing materials by oneself or asking a decoration company to purchase materials, it is best for the parties to leave a sample, which can be used as a basis for judging responsibility in case of problems.

An indoor environment test report is required when the project is accepted.According to the requirements of the national "Code for Indoor Environmental Pollution Control of Civil Construction Engineering", new construction, expansion and reconstruction of civil construction projects must be tested for indoor environmental pollution, otherwise the project delivery and acceptance cannot be carried out.

45. Is there any difference in legal effect between oral contract and written contract in home decoration?

Yang found a decoration company to decorate the balcony. Since the place to start construction is not large, he only made a verbal agreement on the decoration content and price.But after the renovation, he found that the decoration company had overcalculated the decoration area, so he asked the industry personnel to check and confirmed that the actual decoration materials were worse than the promised ones. The original promise to install the sound insulation board between the balcony and the bedroom did not exist. cash.He has approached relevant departments to report the matter, but it has not been resolved.Does the oral contract signed by Yang have any legal effect?

Analysis according to law
According to the "Contract Law", the parties may conclude a contract in either written or oral form.An oral contract has the same legal force as a written contract.Oral contract refers to the situation that when an economic transaction occurs, there is no written evidence that can prove the rights and obligations of both parties to the transaction, and the actual performance is directly carried out.The main reasons for adopting oral contracts are as follows: first, oral transactions are believed to be convenient and trouble-free; second, due to the special credit relationship, there is no need to use contracts to bind them; third, there is no habit of concluding contracts; fourth, there are other evidences that can prove the existence of transaction relationships, Such as sales receipts and invoices.

There is only an oral decoration contract between Yang and the decoration company.But this does not mean that oral contracts have no legal force.The focus of disputes caused by oral agreements often lies in the specific content and standards of decoration, because there is no written agreement, so it is easy to argue.However, if the decoration standard is not agreed or the agreement is unclear, the decoration quality can be appraised according to the general industry standard through the home improvement industry association.All in all, no matter whether there is a written contract or not, the decoration company should bear corresponding responsibilities according to its commitment.

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The main advantage of an oral contract is that it is convenient and fast, and its disadvantages are mainly reflected in the lack of evidence after a dispute occurs.Among the above-mentioned four reasons, if one party repents and "turns his face and denies the person", it will be more troublesome to deal with.Therefore, verbal contracts are generally applicable to transactions with relatively small target amounts or immediate buy-and-sell transactions.

46. ​​How to determine the legal effect of the renovation contract concluded with a private individual?
You Moumou went to a decoration company to inquire about house decoration.As a result, I met a designer in the decoration company. You Moumou felt that the designer's idea was good, so he signed a construction contract with the designer privately.According to the decoration contract, the construction period is 45 days, and the house will be handed over before New Year's Day.However, the renovation has not been completed after more than two months of construction.Not only that, there are also problems with the materials and construction techniques used in the construction.For example, the quality of the wood boards is not up to standard, and the walls start to "peel" before they are painted, etc.Can You Moumou ask the designer to perform the contract?

Analysis according to law
Encountering road guerrillas when decorating houses is an important reason for renovation disputes in recent years.In this case, You Moumou signed a construction contract with the designer himself.Although according to Article 107 of the "Contract Law", if the construction does not meet the requirements, the construction party should also bear the liability for breach of contract.However, the decoration contracts signed with individuals often have the problem of unclear content.For example, the construction progress and the variety and quality of materials purchased by both parties are generally clearly stipulated in the decoration contract signed with a formal decoration company.However, the contracts signed with individuals are often lacking in these contents and are very incomplete.Therefore, after the start of construction, it is difficult for the owner to effectively monitor the quality and progress of the project.Therefore, the risk of signing a renovation contract with individuals, especially road guerrillas, is too great.

Owners should consider taking measures to reduce risks, for example, it is best to have a third party provide guarantee.Otherwise, it will be very difficult to find the responsible person after the quality problem is discovered, not to mention the situation of repair and claim.When the majority of owners are decorating, it is best to choose a regular decoration company with reliable credit.To choose a reputable decoration company, you must also sign a decoration contract according to your own decoration goals and capabilities. Note that there should be clear agreements on some key issues, such as construction progress, material selection and testing.It is best to stipulate the necessary breach of contract clauses in the contract, so that there will be effective constraints on both parties to the contract to avoid future disputes.Of course, to find a regular decoration company, you also need to check the relevant barriers.For example, strengthen control over the construction site and point out violations in a timely manner.

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The decorator and the decoration enterprise shall sign a written contract for residential interior decoration, specifying the rights and obligations of both parties.A residential interior decoration contract generally includes the following main contents:
([-]) Names or unit names, domicile addresses, and contact numbers of the consignor and the consignee:
([-]) The number of rooms and building area of ​​residential interior decoration, decoration items, methods, specifications, quality requirements and quality inspection methods;
([-]) The start and completion time of the decoration project;
([-]) Contents and duration of warranty for decoration works;
([-]) The price of the decoration project, the method and time of pricing and payment;
([-]) Conditions for modification and termination of the contract;
([-]) Liabilities for breach of contract and ways to resolve disputes;

([-]) The effective time of the contract;

([-]) Other terms that both parties think need to be clarified.

47. How to provide evidence to make the developer responsible for the property damage caused by inferior products?

In September 2003, Gu and his wife bought a house in a certain community. After several months of decoration, they planned to officially move to a new house on New Year's Day in 9.However, on December 2004, 2003, the shell at the bottom of the water meter in the bathroom suddenly broke and fell off, and the house was filled with ocean.The wooden floor, which cost nearly 12 yuan to install, has been severely deformed due to soaking, and is almost scrapped.The stagnant water also damaged the furniture in the house.The two households living downstairs in Gu Mou not only peeled off the roof and walls due to moisture, but also began to peel off the paint on the wet furniture.The master who helped to change the water meter said when dismantling the water meter: "This meter was originally broken." Sure enough, the shell of the water meter that fell off had old cracks.The next day, Gu found the developer, a real estate company, but the developer believed that the rupture of the water meter was caused by Gu's window opening and freezing.The two parties later signed an agreement, agreeing to take the water meter to an authority designated by the Provincial Bureau of Quality and Technical Supervision for quality appraisal. If there is indeed a quality problem in the meter appraisal, the real estate development company will bear full responsibility.After testing, the test result was that "the rupture of the water meter was caused by defects such as microcracks in the shell itself before installation".However, Gu did not expect that the real estate company also claimed that "the water meter was not produced by us, and we should seek compensation from the water meter manufacturer."The person in charge of the company believes that although the housing developer is not responsible for the damage to the home decoration caused by the rupture of the water meter, he has passed on the claim of the residents to the manufacturer of the water meter.Gu Mou believed that what he bought was the water meter provided by the developer, and the developer could not shirk responsibility.Can Gu Mou find real estate developers to take legal responsibility?
Analysis according to law
There is no doubt that Gu can demand that real estate developers take legal responsibility.In this case, the water meter provided by the real estate developer had authoritative test results to prove that its quality was flawed.The test results of the provincial quality inspection agency showed that "the rupture of the water meter was caused by defects such as microcracks in the shell itself before installation."As a result of the rupture of the water meter, the floor laid in Gu's house was seriously deformed, almost scrapped, and the furniture in the house was damaged.

Although the water meter is not produced by a real estate developer, the real estate developer must not use this as an excuse to refuse Gu's request to assume legal responsibility.Article 121 of my country's "Contract Law" stipulates that if a party breaches the contract due to a third party other than the party to the contract, it shall bear the liability for breach of contract to the other party.Therefore, although the rupture of the water meter may be due to the poor quality control of the water meter manufacturer, as the real estate development company that directly provided the water meter to Gu, it should still bear the responsibility for breach of contract to Gu.If the real estate agent can prove that the rupture of the water meter is caused by the factors of the water meter manufacturer, then the real estate development company can claim compensation from the water meter manufacturer according to law.

tips

Product quality appraisal is an important way to judge product quality status when dealing with product quality disputes.Product quality appraisal refers to the process in which the appraisal organizational unit designated by the quality and technical supervision department organizes experts to investigate, analyze, judge, and issue quality appraisal reports on products with quality disputes according to the entrusted requirements of the applicant.

Quality assurance has the following characteristics:
[-]. Quality appraisal is generally organized and implemented by the appraisal organization unit designated by the quality and technical supervision administrative department.

[-]. Quality appraisal is mainly for disputed products. Generally, quality appraisal is not required for products that are not in dispute.

[-]. Most of the products identified in the quality appraisal are products that have been worn out, damaged, or have lost their usability. Therefore, compare the internal quality status of the identified products with the requirements of the contract or product standards, and explain the reasons for the quality problems of the products and who caused them. Therefore, product quality appraisal is a "diagnosis" of product quality problems.

[-]. Due to the above characteristics, the technical work of quality appraisal is carried out by technical experts organized by the quality appraisal organization unit, and the expert group investigates, analyzes and judges the product.Issue a quality appraisal report.

48. The owner committee has been elected but has not yet registered.Can the contract signed with the property management company be used as the basis for collecting property fees?

A garden owners committee was established in November 2002, with Fu as the director of the committee for a term of two years. In October 11, Sun was elected as the new director in the general election.As the contract between a community and the property management company is about to expire, the new owner committee has not yet registered with the district real estate administrative department, and has renewed the property service contract with the property management company under the authorization of the owners' meeting. In December 2004, when the property management company collected service fees from a certain garden owner, He, He believed that the contract was invalid and refused to pay the property service fee on the grounds that the new owners’ committee had not registered for the record and had no right to sign a property service contract. .

Analysis according to law
Before the property owners' committee was registered and filed, the contract it concluded with the property management company was valid, and He should pay the service fee to the property management company.

Different answers to the legal nature of owners' committees will directly affect the conditions for the establishment of owners' committees, the attribution of the consequences of their actions, and the assumption of legal responsibilities, resulting in different legal relationships and legal consequences.my country's "Regulations on Property Management" does not clearly stipulate the legal nature of owners' committees, and the practices of different places are also different. Some believe that owners' committees are corporate legal persons, completely independent of individual owners, and can independently exercise civil rights and bear civil responsibilities; It is believed that the owners' committee is an unincorporated organization and does not enjoy independent civil rights. Article 16 of the "Regulations on Property Management" stipulates that "the owners' committee shall, within 30 days from the date of election, file a record with the real estate administrative department of the district and county people's government where the property is located." According to Article 50 of the General Principles of the Civil Law, those who have not registered cannot obtain the qualification of a legal person, and registration is an essential requirement for the establishment of the owners' committee; It means the establishment of the qualification of the main body of the committee.

From a legal analysis, we believe that the owners' committee should be an unincorporated organization. (1) When litigation disputes are involved, the owners' committee shall be authorized by the owners' meeting to represent all owners in litigation activities, and it does not enjoy independent litigation rights; (2) The owners' committee is only the executive body of the owners' meeting, representing the owners For the external implementation of property management-related behaviors, the final result of the behavior is borne by the owner, who does not have the ability to independently bear civil liability; (3) The registration does not mean the establishment of the main body qualification of the owners' committee, and the registration is only for industry management The main purpose is to facilitate the supervision, guidance and management of the owners' committee by the real estate administrative department. It belongs to administrative registration, not civil registration, and is not a requirement for the establishment of the owners' committee.To sum up, the proprietors' committee is established as soon as it is elected, and it is an unincorporated organization.

From the above analysis, it can be concluded that the contract signed by the owners' committee with the property management enterprise before the registration and filing has legal effect.After the establishment of the owners' committee, the change and re-election of members are only the internal affairs of the owners' group, which should be independently decided by the owners' group.After the new committee is established, it can take over the property management affairs without having to wait for the registration procedures to give it legal status.General civil subjects must be registered before they can obtain subject qualifications. The original purpose of the legislation is to ensure the safety and orderly conduct of civil transactions.The registration of the owners' committee is only a need for industry management and does not involve transaction security. Its nature is different from civil registration.The election of the owners' committee is a manifestation of the free will of all the owners, representing the interests of all the owners to the outside world, and the consequences of the civil activities they engage in should be borne by all the owners.

On the other hand, when the opposite party conducts transactions with the owners' committee, it generally believes that the owners' committee has the corresponding representative power. Its engagement in property management activities is to perform its statutory duties. The opposite party has a trust interest in this, even if the owners' committee has not yet filed Registration, the interests of the counterparty to the transaction should also be protected in accordance with the law.

To sum up, although the new owners' committee of a certain garden has not yet registered for the record, the contract it signed with the property management company under the authorization of the owners' meeting is legal and valid, and is legally binding on all owners.He believes that the contract is invalid and refuses to pay the property service fee, which is groundless in law and should not be supported.

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Many owners report that it is difficult to set up an owners committee. There are some problems of illegal administration by some government staff, and there are also problems that owners do not know the method of establishing an owners committee. According to the "Property Management Regulations", the basic steps for establishing an owners committee are as follows. However, there are specific regulations in various places Different, according to local regulations.

The first step is that owners who want to set up an owners committee should first establish contact with each other, and then contact more than one-tenth of the owners in the community to sign and initiate the initiative to establish an owners meeting. General Assembly.

The second step is to set up a preparatory group for the establishment of the owners' meeting. Members of the preparatory group can be recommended by the owners themselves or recommended by the owners. The best way is for the initial promoters to make a public announcement and ask the owners to voluntarily sign up to participate in the preparatory work within a certain period of time.

(End of this chapter)