摘要
在物业管理纠纷发生时,物业管理企业经常以停水断电或拒绝提供其他涉及业主重大利益的物业服务威胁业主,业主也动辄以拒绝缴纳或长期拖欠物业费对抗物业管理企业,这些行为违背诚实信用原则、损害社区公共利益,属于滥用抗辩权的不当抗辩行为。应当从立法和司法角度对这些不当抗辩行为进行限制,在我国现有立法没有相应规定的情况下,法院应援用诚实信用、公共利益和禁止权利滥用原则在司法审判实践中对不当抗辩行为进行限制。在限制不当抗辩行为时,应当允许当事人对无损他人利益的抗辩方式进行约定,也不能否定当事人行使正当的履行抗辩权。
In cases where disputes over property management arise, the companies responsible for the property management often threaten the owners of the property by cutting off electricity and water, or by refusing to offer services which are closely related to the major interests of the owners. The owners will resort to the same way in solving the disputes. They often refuse to hand in fees for property management services or delay doing so for a long time to confront the property management companies. The behaviors of both parties, which go against the principle of honesty and credibility and undermine the communal interests of the community in question, are improper and should be restricted in legislation and judicature. Considering the fact that the present law in our country does not have relevant provisions, the court of law should restrict such improper behaviors by resorting to the principle of honesty and credibility, the communal interests, and by forbidding abusing power in judicial practice. In this very process, the party concerned should be allowed to defend his or her interests in a way which does not undermine the interests of anyone else. Nor should the right to plea on simultaneous performance be denied.
出处
《政法学刊》
2008年第4期52-56,共5页
Journal of Political Science and Law
关键词
不当抗辩
诚实信用
公共利益
权利滥用
限制
improper defensive behavior
honesty and credibility
communal interests abuse of right
restriction
