业主表决权法律问题研究

发布时间：2018-04-23 03:39

本文选题：业主自治 + 业主表决权　；参考：《西南大学》2017年硕士论文

【摘要】：业主表决权又被称为业主投票权,是指业主对小区内的共同管理事项通过投票表决的方式,提出赞同、反对或者其他态度,共同决定待表决事项的可行或者不可行的权利。我国《物权法》第六章专章规定了建筑物区分所有权,采用“三元论”学说,认为建筑物区分所有权是由专有部分的所有权、共有部分的持份权和共同管理权三部分组成,而共同管理权也被称为业主成员权。业主表决权是业主成员权的主要内容之一,也是现代住宅小区实行业主自治的重要手段,对推进业主自治有重要作用。我国现行《物权法》和《物业管理条例》以及相关法律法规对业主表决权作了概括性的规定,对业主表决权的行使主体、业主表决权的确定标准、业主表决权的决议规则、业主表决权的行使方式以及救济渠道等问题作了原则性的规定。但是现行法律法规对业主表决权的规定仍然存在明显的不足,例如业主表决权行使主体的规定未充分结合实际、业主表决权的确定标准过于原则化、业主表决权“多数决”的决议规则存在缺陷、业主表决权的行使方式未充分实现民主自治、业主表决权的救济途径不畅通以及“表决僵局”无法应对等问题。现行法律法规对业主表决权相关问题的规定存在原则化和空白化的问题,使得业主表决权在实际运行中遇到重重障碍,不利于业主对小区事务的管理和业主权利的保障,从而影响业主自治的推进。因此,系统研究业主表决权的法律问题,目的在于完善业主表决权法律制度。首先,从业主表决权的相关概念入手,明确业主表决权的内涵,分析业主表决权的意义,研究业主表决权的理论基础。其次,在理论研究的基础上,研究业主表决权的运行现状,具体包括梳理有关业主表决权的现行法律法规,结合调研报告的数据总结业主表决权的实践运行现状,通过典型案例整理和分析归纳业主表决权的审判实务现状,从而发现业主表决权存在的主要法律问题并对各类问题进行归纳总结。最后,进行业主表决权的比较法考察,研究德国法、日本法以及我国台湾地区法律对业主表决权相关问题的规定,提出完善业主表决权法律制度的建议。具体包括:赋予特殊主体相关决议的表决权或意见表达权;细化专有部分面积加业主人数的双重业主表决权确定标准;严格规范业主表决权“多数决”的决议规则,注重特定业主合法权益的维护;规范书面表决、代理表决,完善代表表决等业主表决权行使方式;完善业主撤销权、赋予业主异议权,畅通业主表决权的救济渠道;建立内部监督与外部监督相结合、业主自发监督与业主监事会监督并行的监督体系;反思“未投票视为有效同意”条款,提出“表决僵局”的解决方案。在此完善建议的基础上,提出业主表决权的立法建议,最终目的是保障业主表决权的行使,推动业主自治的发展。
[Abstract]:Owners' voting rights, also known as owners' voting rights, refer to the owners' right to vote for the common management items in the community, to put forward their approval, objection or other attitudes, and to jointly decide the feasible or infeasible right to vote on the matters to be voted on. The sixth chapter of the "property Law" of our country stipulates the division of ownership of the building, and adopts the theory of "ternary theory", which holds that the ownership of the building is composed of three parts: the ownership of the exclusive part, the holding right of the common part and the joint management right. And common management right is also called owner member right. The owner's voting right is one of the main contents of the owner's member right, and it is also an important means to implement the owner's autonomy in the modern residential district, which plays an important role in promoting the owner's autonomy. The current property Law, the property Management regulations and the relevant laws and regulations have made general provisions on the voting rights of the owners, the exercise of the voting rights of the owners, the determination standards of the voting rights of the owners, and the rules of the resolutions of the voting rights of the owners. Owner of the exercise of voting rights and relief channels and other issues made the principle of provisions. However, the provisions of current laws and regulations on owners' voting rights still have obvious shortcomings. For example, the provisions on the exercise of owners' voting rights are not fully combined with reality, and the criteria for determining owners' voting rights are too principled. There are some defects in the rule of majority decision of owners' voting rights, the ways of exercising owners' voting rights are not fully realized democratic autonomy, the relief ways of owners' voting rights are not smooth, and the "voting deadlock" cannot be dealt with. There are problems of principle and blankness in the provisions of current laws and regulations on the issues related to owners' voting rights, which make the owners' voting rights encounter many obstacles in actual operation, which is not conducive to the owners' management of residential affairs and the protection of owners' rights. Thus affecting the owner of the promotion of autonomy. Therefore, the purpose of this paper is to perfect the legal system of owners' voting rights. First of all, starting with the relevant concepts of owner voting rights, the connotation of owner voting rights is clarified, the meaning of owner voting rights is analyzed, and the theoretical basis of owner voting rights is studied. Secondly, on the basis of theoretical research, this paper studies the current situation of owner voting rights, including combing the current laws and regulations about owners' voting rights and summarizing the practical operation status of owners' voting rights in combination with the data of the investigation report. By analyzing typical cases and analyzing the current situation of the trial practice of the owner's voting right, the author finds out the main legal problems existing in the owner's voting right and sums up all kinds of problems. Finally, the author makes a comparative study of the owner's voting rights, studies the provisions of German law, Japanese law and Taiwan law, and puts forward some suggestions on how to perfect the legal system of owner's voting rights. It includes: giving voting rights or expressing opinions to relevant resolutions of special subjects; defining standard of double owners' voting rights with specific area and number of owners; strictly standardizing the decision rules of "majority decision" of owners' voting rights. Pay attention to the protection of the lawful rights and interests of the specific owners; standardize the written voting, proxy voting, perfect the way of exercising the voting rights of the owners, improve the owners' right to revoke, give the owners the right to dissent, and unblock the relief channels of the owners' voting rights; In this paper, the author sets up a supervision system which combines internal supervision with external supervision. It reflects on the clause that "no vote is regarded as effective consent" and puts forward a solution to the "voting deadlock" by the proprietors' spontaneous supervision and the supervision of the owner's board of supervisors. On the basis of this perfect suggestion, the legislative proposal of owner's voting right is put forward, the ultimate purpose is to protect the exercise of owner's voting right and promote the development of owner's autonomy.
【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2;D922.181

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