Analysis of legal problems caused by rainstorm (IV)
Recently, Typhoon Du Surui triggered a torrential rain and flood disaster in Beijing, and a series of law-related problems appeared in post-disaster recovery and reconstruction. The Beijing Lawyers Association organized lawyers from eleven professional committees, including civil law, insurance, labor, transportation and contract, to set up legal service groups to explain and analyze legal problems arising from the rainstorm.
Legal problem and solutions on that protection of consume rights and interests
1. What kind of legal responsibilities will the operators bear for driving up prices and making disasters?
Operators will bear administrative responsibility, and if the circumstances are serious, they will bear criminal responsibility. In violation of the provisions of the People’s Republic of China (PRC) Price Law, there are acts of manipulating market prices, spreading price increase information to drive up prices, etc., and according to Article 6 of the Provisions on Administrative Penalties for Price Violations, a fine of less than 5 times the illegal income is imposed; If there is no illegal income, a fine of not less than 50,000 yuan but not more than 500,000 yuan shall be imposed, and a fine of not less than 500,000 yuan but not more than 3 million yuan shall be imposed if the circumstances are serious. If the circumstances are serious, criminal responsibility for the crime of illegal business operation may be investigated.
Second, if someone produces and sells food that has been soaked and polluted by floods, what legal consequences will it lead to?
If the production and sale of food soaked and contaminated by flood is enough to cause serious food poisoning accidents or other serious food-borne diseases, it will constitute the crime of producing and selling food that does not meet the safety standards, and can be sentenced to criminal detention, imprisonment, fines, confiscation of property and other penalties.
3. I made an appointment for a photography service. Because of the rainstorm, I applied to the merchant for rescheduling. The merchant refused to reschedule and deducted the deposit. Is it legal?
Article 590 of the Civil Code of People’s Republic of China (PRC) stipulates: "If one party fails to perform the contract due to force majeure, it shall be exempted from liability in part or in whole according to the influence of force majeure, except as otherwise provided by law." Rainstorm will be prompted by weather forecast, so whether it can be attributed to force majeure depends on the specific circumstances such as "unpredictability of rainstorm" and "severity of rainstorm". If it is really impossible to rush to the shooting site due to the stagnant ground water due to the rainstorm, the rainstorm can be considered as force majeure, and the merchants should cooperate to change the date and should not deduct the deposit.
4. If the house rented through an intermediary company is blocked by the roof drainage and accumulated too much water in the rainstorm, which leads to the collapse of the house, can you ask the intermediary for compensation?
When renting a house through an intermediary, if the intermediary deliberately conceals important facts related to the conclusion of the contract or provides false information, which harms the interests of the client, the intermediary shall bear the responsibility; If the intermediary did not conceal the situation of the house in the process of providing intermediary services, the intermediary will not bear the responsibility because of the quality problems of the house itself or the collapse of the house due to disasters, and the lessee may ask the lessor to bear the corresponding responsibilities.
Article 962 of the Civil Code of People’s Republic of China (PRC) stipulates that the intermediary shall truthfully report the matters related to the conclusion of the contract to the client. Where an intermediary intentionally conceals important facts related to the conclusion of a contract or provides false information, thereby harming the interests of the client, it shall not request payment of remuneration and shall be liable for compensation.
5. Who will pay for the goods purchased online that were washed away and damaged by water at the logistics distribution station?
According to the provisions of Articles 47 and 48 of the Postal Law of People’s Republic of China (PRC), if the online shopping items are insured with property loss insurance, you can apply for insurance claims; If the merchant applies for insured price at the time of delivery, the logistics company can compensate according to the insured amount. For mail losses caused by force majeure, logistics enterprises shall not be liable for compensation, except for insured mail items.
Legal problems and solutions about land and real estate
1. Who will bear the maintenance responsibility for the leakage of the rented house caused by heavy rain?
If there is an agreement in the lease contract, if there is no agreement, the lessor shall perform the maintenance obligation of the lease item according to Article 712th of the Civil Code of People’s Republic of China (PRC). If the contract signed by the lessor and the housing leasing enterprise stipulates that the maintenance responsibility belongs to the housing leasing enterprise, the lessor may pursue the responsibility from the housing leasing enterprise after assuming the maintenance responsibility.
Second, the rainstorm caused the rental house to be flooded. Who will bear the loss of indoor property?
The loss of the lessee’s indoor property shall be borne by the lessee in principle. However, if there is evidence that the house itself has design defects or that the improper transformation of the housing leasing enterprise has caused or aggravated the losses of the lessee, the lessor and the housing leasing enterprise may be investigated for tort liability according to their fault.
3. Who should bear the liability for compensation if the rainstorm causes the house to leak and flood downstairs?
If the leakage point is in public places or public facilities such as leaking pipes, the property service person shall be liable for compensation; If the water leak is in the exclusive part, the owner shall be liable for compensation. After the owner is liable for compensation, if there is an agreement with the lessee in the lease contract, he may pursue the responsibility from the lessee.
After finding water leakage upstairs, the injured party should first protect the site and fix the evidence. For example, taking photos, video recording and other evidence collection. You can find property service providers or communities, let them give their opinions, or let them go to the upstairs owners for consultation and repair. If the consultation fails, an agency with assessment qualification can be invited to the site for assessment. After sorting out the relevant evidence, you can bring a lawsuit to the court and ask the upstairs owner to compensate for the losses.
4. Can the lessee claim rent relief from the lessor because the leased house cannot be used normally due to heavy rain?
If the leased premises can’t be used normally due to the rainstorm disaster, if it is caused by reasons not attributable to the lessee, the lessee may request the lessor to partially or completely waive its obligation to pay rent; If the lessee is at fault, it shall bear corresponding responsibilities according to the size of the fault. The lessee shall notify the lessor in time to reduce the losses that may be caused to the lessor, and provide evidence to prove it within a reasonable period of time. In addition, if the lessee has delayed payment or refused to pay the rent before the rainstorm disaster, the lessee’s default liability occurred first and the flood disaster occurred later, and the lessee’s unpaid rent cannot be exempted at this time.
5. If the leased premises cannot be used normally due to the rainstorm, can the lessee claim to terminate the contract with the lessor?
It needs to be determined according to the damage of the house. If the purpose of the lease contract cannot be achieved due to serious damage, the lessee may request to terminate the lease contract according to Article 563 of the Civil Code of People’s Republic of China (PRC). In judicial practice, the people’s court will comprehensively consider the impact of floods on the contract performance period, contract content, contract subject matter and other related issues, and handle the termination of the contract according to the situation. In the case that the lease term of the contract or the remaining lease term is short, and the leased house is partially or completely damaged or lost due to the rainstorm disaster, the lessee’s contractual purpose can no longer be realized, and the request to terminate the contract can usually be supported. If the remaining lease term is long and the leased house itself is not seriously damaged or can be resumed as soon as possible after cleaning, it will not affect the realization of the purpose of the lease contract itself. At this time, the lessee’s claim to terminate the lease contract is usually not supported, but at this time, the lessee can still reduce its losses by applying for rent reduction.
6. If the land and house are damaged and lost due to the flood, and the lease contract cannot be continued, do you need to bear the liability for breach of contract?
No liability for breach of contract is required. Article 180 of the Civil Code of People’s Republic of China (PRC) stipulates that those who cannot perform their civil obligations due to force majeure shall not bear civil liability. If there are other provisions in the law, such provisions shall prevail. Force majeure is an objective situation that cannot be foreseen, avoided and overcome, and floods fall into this category.
Seven, how to repair the roof leakage and wall seepage caused by heavy rain?
According to the Measures for Quality Warranty of Building Construction Projects, the warranty period of roof waterproofing works, toilets, rooms and exterior walls with waterproof requirements is 5 years. Within 5 years, the owner may ask the construction unit to carry out repairs. If the construction unit refuses to repair, the reasonable expenses incurred by the owner after repairing by himself may claim compensation from the developer. Over the warranty period, the roof maintenance belongs to the public part, you can apply for the start of residential special maintenance funds.
Eight, how to start the special maintenance fund for housing caused by heavy rain?
The Beijing Municipal Commission of Housing and Urban-Rural Development and the Beijing Housing Provident Fund Management Center issued the Notice on Further Promoting the Use of Special Maintenance Funds for Houses in the Case of Rain Leakage (J.J.F. [2023] No.253), which stipulates that if the houses in residential quarters leak rain and exceed the maintenance scope agreed in the property service contract, the community industry committee (property management committee) and the property service provider should first report to the local residents’ (village) committees in time for on-the-spot inspection by all parties. After confirming the mode and scope of maintenance and renovation, the industry committee (property management committee) or the property service provider can entrust the construction unit to carry out maintenance and renovation of the parts involved in the house leakage. After the maintenance and renovation, the project cost accounting, the application for the use of maintenance funds to the relevant departments, and the allocation of special maintenance funds for housing to the bank account of the construction unit can be carried out. Therefore, within the scope of this city, the use of the maintenance fund in the case of water leakage in the house can be realized first and then funded under the corresponding conditions, and the process is more convenient.
9. Who can claim the loss from the heavy rain that caused the house to partially collapse?
If the house collapses due to its own quality problems, it can claim compensation from the developer; If the house collapses under the rainstorm disaster due to long-term construction and improper use, the rainstorm is a force majeure factor and cannot claim compensation. You can try to apply for subsidies from the local government.
Ten, heavy rain caused the garage, garage irrigation, resulting in property damage, who should be liable for compensation?
The possible responsible subjects are developers and property service providers. If the drainage design of residential areas, underground garages and basements is not in accordance with national standards, and the design or construction is not standardized, resulting in drainage problems, developers can be required to bear the responsibility; If the realty service contract stipulates the relevant management responsibilities of the realty service provider in case of sudden natural disasters, and the realty service provider neglects his duty (such as failing to take preventive and early warning measures, making notification and early warning, and taking necessary dredging and backflow prevention measures), the realty service provider may be required to bear the responsibility.
11. Who should claim compensation for the broken trees and broken doors and windows in the rainstorm?
If the forest manager or owner is at fault, he may claim compensation from the forest manager or owner, who shall be liable for compensation according to the size of his fault; If the forest manager or owner proves that he is not at fault and it is caused by the weather, it is an exempted force majeure factor and cannot claim compensation.
Twelve, due to heavy rain caused by the contracted land disaster, how to relief?
If there are other parties’ faults in the contracted land, such as poor drainage due to the neighboring land, the relevant parties shall bear the tort liability. If the contracted land has purchased the corresponding agricultural insurance, it can claim compensation according to the insurance contract. If there is no insurance and no third-party infringement, the Beijing Municipal Bureau of Agriculture and Rural Affairs issued the "Guiding Opinions on the Recovery of Production in Agriculture and Rural Areas in the City after the Disaster" on August 1, 2023, emphasizing the drainage of affected farmland, crop management, agricultural insurance claims, and the implementation of subsidies for benefiting farmers. Please wait for the guidance of the local government for post-disaster rehabilitation and post-disaster relief subsidies. In addition, if the rainstorm causes serious damage to the contracted land, an application can be made to adjust the contracted land according to Article 336 of the Civil Code of People’s Republic of China (PRC).
13. If the subcontracted land is affected by heavy rain, can you ask for the termination of the contract?
Unless it is otherwise agreed in the contract, the contract cannot be terminated unless the heavy rain causes serious damage to the subcontracted land. In agricultural production, the possibility of the contracted land being affected by extreme weather should be foreseen, and the subcontractor only has the obligation to deliver the subcontracted land, but not to ensure the contractor’s harvest.
14. In the process of dealing with the rainstorm disaster, the property service person does not act. As the owner, can the property service person be replaced?
It is the owner’s right to dismiss the property service provider according to law. If the property service provider fails to act in the process of dealing with the rainstorm disaster, such as untimely warning and inadequate drainage measures, the owner has the right to jointly decide to dismiss the property service provider according to Article 278 of the Civil Code of People’s Republic of China (PRC). In addition, if the inaction of the property service provider violates the contract and causes losses to the owner, the owner may also require the property service provider to bear corresponding responsibilities.
Fifteen, what are the relief paths for the damage of houses caused by heavy rains and floods?
1. Judge the cause of the house damage. Confirm whether the house damage is caused by building quality problems or force majeure natural disasters, and seek the relief path accordingly.
2. Rainstorm is a major natural disaster of legal force majeure. If there is no building quality problem in the house, you can apply to the government department for assistance for the loss of the house caused by the natural disaster. If the homeowner has insured the family property insurance, he can claim compensation from the insurance company.
3. If the house loss is caused by the construction quality problem or the third party’s responsibility, you can claim compensation from the developer, the constructor, the property service provider or the infringer.
Sixteen. What preparations are needed to claim relief after the house is damaged?
1. Collect evidence. No matter which route you take to claim, you need to collect enough evidence to prove the fact and extent of the house loss. For example, you can take photos or videos, save relevant documents or contracts, find witnesses or witnesses, and so on.
2. Assess the amount of loss. The original value of the house can be proved according to the purchase contract, construction agreement, etc., and the amount of loss of the house can be evaluated according to factors such as repair cost and service life. If necessary, you can ask a professional evaluation agency to make an evaluation.
3. Make a claim or relief request. It is necessary to put forward corresponding requirements according to different claim relief objects and methods. If you apply for assistance from a government department, you need to fill in the application form and submit relevant materials; If you are claiming compensation from an insurance company, you need to report the case and provide insurance policies and evidence; If you claim for compensation from other parties, you can send a lawyer’s letter or sue, and so on.
4. Maintain communication and consultation. In the process of claim, it is necessary to maintain communication and consultation with the other party and try to reach a reasonable and satisfactory result. If the other party refuses or delays compensation, it can be solved through litigation, and if it meets the conditions, it can seek legal aid.
17. What are the basis and principles for applying to the government for assistance after the house is damaged by the disaster?
The basis for applying for assistance is Articles 19 and 20 of China’s Regulations on Natural Disaster Relief. According to the above provisions, after the danger of natural disasters is eliminated, the people’s governments in the affected areas should make overall research and formulate plans and preferential policies for the restoration and reconstruction of residents’ houses, organize the reconstruction or repair of residents’ houses damaged by disasters, and give key assistance to families with real difficulties in restoration and reconstruction. The restoration and reconstruction of residents’ housing should be adapted to local conditions, economical and practical, and ensure that the quality of housing construction meets the requirements of disaster prevention and mitigation. The emergency management departments of the people’s governments in the disaster-stricken areas shall distribute subsidy funds and materials to the residents’ housing recovery and reconstruction subsidy objects confirmed by the audit, and the housing and urban-rural construction departments shall provide necessary technical support for the reconstruction or repair of residents’ housing damaged by the disaster. Residents’ housing restoration and reconstruction subsidies are applied by the affected persons themselves or nominated by villagers’ groups and residents’ groups. After democratic appraisal by villagers’ committees and residents’ committees, those who meet the conditions for assistance shall be publicized in natural villages and communities; If there is no objection or the democratic appraisal objection of villagers’ committees and residents’ committees is not established, the villagers’ committees and residents’ committees will submit the appraisal opinions and relevant materials to the township people’s government and the subdistrict office for examination and approval, and report them to the emergency management department of the people’s government at the county level for examination and approval.
Eighteen, how to apply for insurance claims after the house is damaged?
1. The key to housing damage insurance claims depends on whether you have purchased family property insurance, that is, family property insurance. Family property insurance covers a wide range, but generally it mainly protects the house, and at the same time it can also play a certain role in protecting the accessories such as decoration, furniture and household appliances in the house.
2. If an owner has purchased property insurance in advance, he shall promptly report the damaged house to the insurance company and apply for compensation. The insurance company will be liable for compensation according to the loss of the house, its attachments and decoration parts and the proportion of the insured amount to the insured value.
3. Family property insurance also has certain restrictions on the scope of compensation for indoor property, specifically according to the insurance contract. General housing main body and hard decoration are within the scope of compensation, but jewelry, currency, securities, tickets, stamps, antiques, animals and plants and other properties that cannot be proved and appraised are not within the scope of compensation.
4. When reporting an insurance case, you should provide necessary supporting materials. When making claims, insurance companies will generally ask for accident certificates, damaged photos, financial invoices, real estate licenses, ID cards, bank cards and other claims materials.
Nineteen, the flood destroyed the houses and homestead in a village, and the original four to unknown, can villagers build houses at will after the disaster? How is this law stipulated?
I can’t. The homestead belongs to the collective. According to Article 265 of the Civil Code of People’s Republic of China (PRC), the property owned by the collective is protected by law, and any organization or individual is forbidden to occupy, plunder, privately divide or destroy it. Article 364 of the Civil Code of People’s Republic of China (PRC) stipulates that if the homestead is lost due to natural disasters and other reasons, the right to use the homestead shall be extinguished. Villagers who have lost their homesteads shall be redistributed according to law.
20. Does the state compensate for the loss of land, houses and other property caused by flood discharge?
Give compensation. According to Article 9 of the Interim Measures for Compensation for the Use of Flood Storage and Detention Areas, if residents in flood storage areas suffer property losses due to flood discharge, the state will pay compensation for housing damage, crops, professional aquaculture and economic forest water damage to residents in flood storage and detention areas according to the loss.
21. How can residents in flood storage and detention areas get compensation for property losses?
According to the Interim Measures for Compensation for Flood Storage and Detention Areas issued by the State Council (the State Council Order [No.286]), only 70% of houses are compensated for damage caused by water, and 50% of household agricultural production machinery, draught animals and major household durable consumer goods are compensated for damage caused by water, and 40%-70% are compensated for losses caused by water below 2,000 yuan.