Our firm's lawyer represented the owner Ding XX in a property damage compensation case against the property management.

Owner Ding XX and his family were away from Shenzhen when rainwater backflowed due to a blocked drainage pipe caused by rain, resulting in water damage to the property. Ding XX entrusted Attorney Cheng Quan to sue the property management company for compensation. The property management company argued that the blockage was caused by Ding XX's improper renovation and was not their responsibility. Attorney Cheng used evidence such as audio recordings, witness testimony, appraisal reports, and photographs to prove that the property management company bore undeniable liability. The court of first instance adopted Attorney Cheng's arguments, determining the property loss at 68,865 yuan, including 58,364.9 yuan for repair costs and 10,500 yuan for Ding XX's rental expenses during the repair period (calculated at 3,500 yuan per month for 3 months), and ruled that the property management company bear 70% of the liability, compensating Ding XX with 48,205.5 yuan in economic losses. The property management company appealed, but the second-instance judgment upheld the original ruling, and Ding XX received the due compensation.

Civil Judgment of the Intermediate People's Court of Shenzhen City, Guangdong Province

(2008) Shen Zhong Fa Min Wu Zhong Zi No. 581

The appellant (defendant in the original trial), Shenzhen XX Property Management Co., Ltd., with its address at the first floor of Guomao XX Building, Renmin South Road, Luohu District, Shenzhen.

Legal representative Wang XX, Chairman of the Board.

Attorney Zhao XX, lawyer at Guangdong XX Law Firm.

Appellee (plaintiff in the original trial) Ding XX, male, Han ethnicity, residing at Room XXX, Building XX, XX Garden, Futian District, Shenzhen.

Entrusted agent Cheng Quan, lawyer at Guangdong Zhiming Law Firm.

The appellant, Shenzhen XX Property Management Co., Ltd., having objected to the civil judgment of the Shenzhen Futian District People's Court (2007) Shen Fu Fa Min San Chu Zi No. 1964 in a case concerning a property damage compensation dispute, has filed an appeal with this court. This court has lawfully constituted a collegiate bench to hear the case, and the trial has now been concluded.

The court of first instance found that Ding XX was the owner of Room XX, Building XX, XX Garden, Futian District, Shenzhen, and that the Futian XX Garden Property Management Office, a subsidiary of Shenzhen XX Property Management Co., Ltd., was the property manager of the premises. In early June 2007, the property in question suffered damage due to flooding. Regarding the disputed cause of the flooding, Ding XX, in order to prove that the flooding was caused by rainwater backing up due to a blocked rainwater pipe, submitted to the court a recording of a conversation between Ding XX and his lawyer and staff of Shenzhen XX Property Management Co., Ltd. made after the incident. Based on the content of the conversation, the two parties mainly disputed whether renovation debris blocking the rainwater pipe caused the flooding. The staff of Shenzhen XX Property Management Co., Ltd. did not deny the fact that the flooding was caused by the blocked rainwater pipe. Since this evidence was formed when Ding XX returned to Shenzhen on June 20, 2007, and communicated with Shenzhen XX Property Management Co., Ltd. the following day, it was very close in time to the incident. At that time, no litigation had yet arisen between the parties, and the content of the conversation between the two parties essentially reflected their true intentions, carrying strong credibility and capable of proving the cause of the flooding. Witness Huang XX personally experienced the process of both the plaintiff and defendant inspecting the site to determine the cause after the incident, and his testimony regarding the blocked rainwater pipe was relatively truthful and credible. The above evidence corroborated each other, confirming the fact that the flooding was caused by rainwater backing up due to a blocked rainwater pipe. Although Shenzhen XX Property Management Co., Ltd. denied that the blocked rainwater pipe was the cause of the flooding, it did not provide contrary evidence to prove otherwise, nor did it apply to the court for an appraisal of the cause of the flooding. Moreover, while denying the fact of the blocked rainwater pipe, Shenzhen XX Property Management Co., Ltd. simultaneously claimed that Ding XX's own improper renovation caused the blockage, and these defenses were contradictory and clearly unreasonable, and thus were not accepted.

Additionally, regarding the scope of property management duties of Shenzhen XX Property Management Co., Ltd., Article 2 "Entrusted Management Matters" of the "Property Management Contract" signed between Shenzhen XX Property Management Co., Ltd. and the XX Garden Owners' Committee on May 17, 2007 stipulates that the common facilities and equipment of the building structure, including shared water supply and drainage pipes and downspouts, shall be repaired, maintained, managed, and operated by Shenzhen XX Property Management Co., Ltd.

Further investigation revealed that Ding XX admitted during the court hearing that neither Ding XX nor his family were in Shenzhen at the time of the incident, and the property in question was vacant. Shenzhen XX Property Management Co., Ltd. had notified Ding XX by phone on May 10, 2007, that water was seeping from the floor below, and subsequently made several attempts to contact Ding XX. It was not until Ding XX returned to Shenzhen from out of town on June 20, 2007, that he discovered the property had been flooded.

Further investigation revealed that during the trial of this case, the court commissioned Shenzhen XXX Asset Appraisal, Land and Real Estate Valuation Consulting Co., Ltd. (hereinafter referred to as the appraisal company) to assess the losses suffered by the house due to water damage. On October 30, 2007, the appraisal company issued the "Asset Appraisal Report" under document number Shen XX Ping Bao Zi No. 2-31005, determining the house losses to be 68,865 yuan, which included repair costs of 58,364.9 yuan and rental losses of 10,500 yuan for Ding XX during the period of redecoration (calculated over 3 months at 3,500 yuan per month). During the court hearing and evidence examination, neither party raised any objections to the appraisal report.

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The court of first instance held that the "Property Management Contract" signed between the Owners' Committee of XX Garden, representing all owners, and Shenzhen XX Property Management Co., Ltd. was lawful and valid, and had legally binding effect. As an owner within the property management area, Ding XX lawfully enjoyed the rights under the property management contract, and Shenzhen XX Property Management Co., Ltd. was obligated to provide property services to the owners in accordance with the terms of the contract. According to the contract, the repair, maintenance, management, and operational services for the shared water supply and drainage pipes and downspouts used by the owners were the responsibility of Shenzhen XX Property Management Co., Ltd., and the routine maintenance and management of rainwater pipes fell within the scope of its property management duties. To ensure the normal operation of the rainwater pipes, Shenzhen XX Property Management Co., Ltd. was required to regularly inspect and clear them. Shenzhen XX Property Management Co., Ltd. failed to fulfill the aforementioned obligations under the property service contract, resulting in rainwater backflow causing flooding, which led to property damage for Ding XX; therefore, Shenzhen XX Property Management Co., Ltd. should bear liability for compensation. After receiving a telephone notice from Shenzhen XX Property Management Co., Ltd. on May 10, 2007, regarding leakage in the downstairs unit, Ding XX failed to take it seriously and delayed returning home to inspect the leakage situation until June 20, 2007, thereby bearing some responsibility for the expansion of the flood damage and should bear 30% of the losses himself. The industrial and commercial inquiry fees, postage fees, and transportation expenses incurred by Ding XX for litigation were not direct losses caused by Shenzhen XX Property Management Co., Ltd.'s breach of contract, and Ding XX's claim for compensation for these losses lacked legal basis and was not supported. In accordance with Articles 8, 107, and Paragraph 1 of Article 119 of the Contract Law of the People's Republic of China, and Item (2) of Article 15 and Article 36 of the Property Management Regulations, the judgment was as follows: 1. The property management contract relationship between Ding XX and Shenzhen XX Property Management Co., Ltd. was valid; 2. Shenzhen XX Property Management Co., Ltd. shall compensate Ding XX for economic losses caused by the flooding in the amount of 48,205.5 yuan (compensation amount = total loss of 68,865 yuan × 70%) within 10 days from the effective date of this judgment; 3. Other claims of Ding XX were dismissed. If the monetary obligation was not fulfilled within the period specified in this judgment, interest on the debt for delayed payment shall be doubled in accordance with Article 232 of the Civil Procedure Law of the People's Republic of China. The case acceptance fee of 2,544 yuan, reduced by half to 1,272 yuan due to the application of the simplified procedure, plus the appraisal fee of 2,000 yuan, totaling 3,272 yuan, was to be borne by Ding XX in the amount of 1,866 yuan and by Shenzhen XX Property Management Co., Ltd. in the amount of 1,406 yuan (already advanced by Ding XX, and Shenzhen XX Property Management Co., Ltd. shall pay it directly to Ding XX).

判决后，深圳市 XX物业管理有限公司不服，向本院提起上诉。上诉称，一、一审判决事实认定不清。1、被上诉人不能证明室内进水时他不在深圳。一审时，被上诉人只提供了一张没有年份，只有月份、日期，身份证号码不清的登机牌，没有其他证据证明2007年5月中、下旬到6月上旬他不在深圳，更不能证明他室内没有人居住。因此，被上诉人应承担室内进水没有清理和扩大损失的责任。2、被上诉人应当承担室内进的是雨水的举证责任。根据《民事诉讼法》谁主张谁举证的原则及最高人民法院《关于民事诉讼证据的若干规定》第二条规定，当事人对自己提出的诉讼请求所依据的事实有责任提供证据。根据上述法律规定，被上诉人未能举证证明其室内进的水是雨水，应当承担举证不能的法律责任。从上诉人管理人员2007年5月1 0日通知被上诉人，其室内有水浸入楼下，到2007年6月21日下午与上诉人管理人员交涉(被上诉人的录音可以证明)，时间将近一个半月(因为被上诉人室内阳台违法安装有自来水管，室内进的水也有可能是水管流出的)。被上诉人与上诉人管理人员就室内进水进行交涉时，室内早已没有水了。因此，被上诉人依法应当承担时内进的是什么水的举证责任。3、被上诉人没有装修验收合格证明，其就不能证明其装修没有堵塞雨水管。从被上诉人提供给一审法院的证据可以看出，被上诉人与装修单位并没有验收合格证明，根据《办法》第三十条第一款规定：‘‘住宅室内装饰装修工程竣工后;装修人应当按照工程设计合同约定和相应的质量标准进行验收。验收合格后，装饰装修企业应当出具住宅室内装饰装修质量保修书”。由此可见，被上诉人没有验收合格证明，就不能证明雨水管堵塞不是被上诉人装修所为。4、一审对于被上诉人违反《住宅室内装饰装修管理办法》(简称办法)的行为未认定和判决，是对被上诉人违法行为的保护。(1)被上诉人阳台安装有自来水管，这一水管是隐藏安装的，从室内经过有很长的距离，水也有可能是从水管流出。本案被上诉人阳台安装水管，违反了《办法》第五条第二项，不能将阳台改为卫生间的禁止性规定。(2)被上诉人阳台雨水管入口被改造装修过，装修垃圾进入雨水管，被上诉人没有清理。根据《办法》第三十三条规定，因住宅室内装饰装修活动造成管道堵塞等，装修人应当负责修复和赔偿，属装饰装修企业责任的，装修人可以向装饰装修企业追偿。由此可见，雨水管是被上诉人装修堵塞，被上诉人依法有义务疏通被其装修堵塞的雨水管，这是法律的规定，上诉人没有义务清理被上诉人堵塞的雨水管，只有该雨水管恢复正常使用后，上诉人才有责任按照《物业管理合同》的规定，维护和管理该雨水管。因此，法院未认定被上诉人这一违法行为，是对其违法行为的保护。5、雨水管有堵塞，如是被上诉人装修堵塞造成其室内进水，上诉人不应承担任何责任。一审如已查明是雨水管堵塞造成被上诉人室内进水，就应当查明堵塞是谁的责任，正确认定依法谁有义务疏通被堵塞的雨水管，判决其承担法律责任。根据《办法》第三十条第二款规定：“物业管理单位应当按照装饰装修管理服务协议进行现场检查，对违反法律、法规和装饰装修管理服务协议的，应当要求装修人和装饰装修企业纠正，并将检查记录存档”。根据这一法律规

The appellee did not sign a decoration and renovation management service agreement with the appellant. As such, the appellant had no obligation to provide services for the appellee's renovation. On the contrary, pursuant to Article 30, Paragraph 1 of the Measures, the appellee was obligated to clear the rainwater pipe that it had blocked. Since the appellee failed to do so, causing the rainwater pipe to be blocked, the appellee shall bear responsibility under the law. If any damage resulted therefrom, the appellee shall also bear such liability, and the appellant shall not bear any responsibility. 6. The first instance failed to add defendants and conduct on-site inspection, resulting in the facts of this case not being fully ascertained. The rainwater pipe in question is also a shared pipe used by seven homeowners. According to the audio recording evidence submitted by the appellee, it can be proven that the blockage of the rainwater pipe was caused by construction waste. Since only the appellee was renovating its premises recently, the upstairs homeowners should also prove that they bear no responsibility for the blocked rainwater pipe. The appellant requested the first instance court to add Shenzhen XX Property Management Co., Ltd. as a defendant and to conduct an on-site inspection to verify the authenticity of the photographs submitted by the appellant. The purposes were: first, to prove that the rooftop involved in this case was very clean, had not been modified recently, and that it was impossible for construction waste to enter the rainwater pipe from the rooftop. As for the rainwater pipe mentioned in this case, there is a mesh at its inlet, so debris and other items would not enter the pipe. If the rainwater pipe were blocked, it could only be caused by users during their use. If the upstairs homeowners of the appellee caused the blockage, they should bear responsibility; if the appellee's renovation caused the blockage, then the appellee should bear responsibility. Second, the appellant did not mismanage the rainwater pipe. On the contrary, the fact that the lower end of the pipe was opened to clear the blockage is itself an act of management by the appellant in response to the identified problem with the pipe. It follows that the first instance judgment, which ordered the appellant to bear compensatory liability without fully ascertaining the facts of this case, lacks factual and legal basis. 7. The witness has an interest in the case with the appellee, and the testimony should not be admitted. The witness presented by the appellee is an employee of the appellee and has an interest in the case with the appellee. Therefore, the witness testimony of the appellee is somewhat biased and should not be accepted by the court. When the witness appeared in court, it was not verified whether the application was made within the time limit for submitting evidence, and this issue of whether the evidence was submitted beyond the evidence submission period was not subject to cross-examination. 8. The appellant raised objections to the appraisal report during the first instance. At the trial, the appellant argued that there is no legal provision allowing the calculation of renovation costs to include rental expenses for the premises, especially since the assessed rental expenses had not yet occurred. Moreover, the appraisal report exceeded the scope of the court-commissioned appraisal (see the court's appraisal commission letter). The rental expense of 10,500 yuan for the homeowner during the renovation period stated in the appraisal report lacked the basis of a court commission.

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II. The first-instance judgment erred in the application of law, and this case should be adjudicated in accordance with the "Measures for the Administration of Interior Decoration and Renovation of Residential Buildings." When the court applies the law to determine the facts of the case and render its judgment, it should first apply specialized legal provisions. The "Measures for the Administration of Interior Decoration and Renovation of Residential Buildings" (Ministry of Construction Order No. 110), effective as of May 1, 2002, is the specialized legal regulation governing interior decoration and renovation. In adjudicating the case, the court should apply this law with priority over other laws. This law serves as the legal basis for determining matters related to interior decoration and renovation of residential buildings, and it has clearly stipulated the legal relationships concerning the administration of such decoration and renovation, the acceptance of completed works, and the rights and obligations between the property owner and the decoration enterprise. The appellee engaged in serious illegal conduct during the interior decoration and renovation of the residential building, and failed to conduct a comprehensive acceptance inspection with the decoration personnel in accordance with this law (with no evidence of a qualified acceptance inspection), nor did it provide proof of clearing the rainwater pipe. In determining the facts, the court should have applied this law to adjudicate the case. The first-instance court's failure to apply this legal provision in determining and adjudicating the case constitutes an error in the application of law. In summary, the first-instance court determined that the blockage of the rainwater pipe caused water to enter the appellee's premises and ordered the appellant to bear liability for compensation, while failing to determine the responsibility that the appellee should bear for violating the "Measures for the Administration of Interior Decoration and Renovation of Residential Buildings" and blocking the rainwater pipe. This constitutes protection of the appellee's illegal conduct and represents an unclear determination of the facts. The first-instance court's failure to apply the "Measures for the Administration of Interior Decoration and Renovation of Residential Buildings" in adjudicating this case means the judgment contains errors in the application of law. The appellant requests that the court of second instance ascertain the facts of this case and reject all of the appellee's claims in accordance with the law. III. With respect to the burden of proof, the appellee has no evidence whatsoever to substantiate its factual assertions, namely whether the water was tap water or rainwater, nor is there any evidence demonstrating the weather conditions during the relevant period when the alleged incident occurred. IV. With respect to the application of law, the first-instance court failed to apply the provisions of the residential design and decoration administration measures concerning the decorating party when adjudicating this case. With respect to procedural issues, the cause of action in the first-instance case was a tort claim, but during the trial, the court proceeded with the case as a contract dispute, which constitutes a procedural error. The appellee filed the lawsuit based on tort, and the appellant requested that potentially responsible parties for the tort be added as co-defendants, but the court refused. Since the case was filed as a tort claim, any party that may have caused the tort should have been added as a co-defendant in accordance with the law. The first-instance court's unilateral conversion of the tort claim into a contract dispute during the trial constitutes a procedural error. Appeal requests: 1. Request that the court revoke the civil judgment (2007) Shen Fu Fa Min San Chu Zi No. 1964 in accordance with the law; 2. Request that the court reject all of the appellee's claims; 3. Request that the appellee bear all litigation costs.

The appellee, Ding XX, argues in response: First, the first-instance judgment has clear factual findings and correct application of law, and requests that the original judgment be upheld. Second, the appellant's grounds for appeal cannot stand, as they lack factual and legal basis, and should be rejected according to law. The appellant's claim that the facts were not clearly determined is without factual support. The appellant raises eight grounds for appeal, which contain internal contradictions. The second ground states that the damage to the house was caused by rainwater, but the third, fourth, and fifth grounds are all premised on the admission of rainwater backflow. Moreover, the court of first instance, through the evidence presented by both parties and the trial at first instance, has already rendered a fair judgment. The supplementary grounds for appeal just raised by the appellant's representative, the first part of which denies rainwater backflow, are identical to the first ground of appeal. This case is a property damage claim based on a property management contract. As the owner, who is a party to the contract, the owner inherently has the option to choose between a breach of contract action and a tort action. However, the underlying legal relationship between the parties is established on the property management contract. Therefore, the

The argument raised by the party that the nature of the case was changed without authorization cannot stand. The appellant had already submitted audio evidence during the first instance trial, which confirmed the issue of rainwater backflow. The appellant attributed the responsibility for the rainwater backflow to the renovation that occurred six months earlier, yet the renovation approval form submitted by the appellant indicates that the appellee's renovation activities were entirely under the appellant's management and control. As for the testimony of the witnesses, both its form and content comply with legal requirements. Therefore, the appellant's opinion that the testimony should not be admitted solely based on the witnesses' identity is one-sided and extreme, and cannot serve as grounds for excluding such evidence. Regarding the appraisal report, it was commissioned by the court through a third party and produced through notarized and professional procedures. Among its findings, the rental cost of the premises is a real and inevitable expense, and this loss is unavoidable in the process of restoring the property damage in this case. Therefore, including this loss in the appraisal is a natural and necessary component and does not exceed the scope of the commissioned appraisal. The first instance court's decision to admit it in accordance with the law is reasonable and lawful. The first ground stated in the first part of the appellant's appeal brief cannot stand. Ding XX and Shenzhen XX Property Management Co., Ltd. are the two parties to the property management contract, and the appellant's assertion that the case should be tried in accordance with the legal provisions of the Residential Decoration Management Measures cannot stand.

This court finds that the facts ascertained are consistent with those found in the original judgment, and this court affirms the facts as established in the original judgment.

This Court holds that the "Property Management Contract" signed between the Owners' Committee of XX Garden, on behalf of all owners, and Shenzhen XX Property Management Co., Ltd. is lawful and valid, and has legally binding effect. The court of first instance correctly applied the law in finding that Ding XX, as an owner within the property management area, is entitled to the rights under the property management contract. Shenzhen XX Property Management Co., Ltd. shall provide property services to the owners in accordance with the terms of the property management contract. Under the contract, the repair, maintenance, management, and operational services for the shared water supply and drainage pipes and downspouts are the responsibility of Shenzhen XX Property Management Co., Ltd., and the routine maintenance and management of rainwater pipes fall within the scope of its property management duties. To ensure the normal operation of rainwater pipes, Shenzhen XX Property Management Co., Ltd. shall regularly inspect and clear them. Having failed to fulfill the above obligations under the property services contract, resulting in rainwater backflow causing flooding and property damage to Ding XX, the court of first instance correctly applied the law in ordering Shenzhen XX Property Management Co., Ltd. to bear liability for compensation.

In summary, the original judgment has clear factual findings and correct application of the law, and should be upheld. The appellant's grounds for appeal are not established and should be dismissed. Pursuant to Article 153, Paragraph 1, Item (1) of the Civil Procedure Law of the People's Republic of China, the judgment is as follows: The appeal is dismissed, and the original judgment is affirmed. The second-instance case acceptance fee of RMB 1,005 yuan shall be borne by the appellant. This judgment is final.

Presiding Judge Xu XX

Judge Ke XX

Acting Judge Yang XX

Clerk Cai XX

Intermediate People's Court of Shenzhen City, Guangdong Province

June 27, 2008