业主表决权法律制度研究

发布时间：2018-05-21 11:15

本文选题：业主 + 业主权　；参考：《四川师范大学》2015年硕士论文

【摘要】：我们日常的生活区域主要是小区,因而小区物业的好坏直接影响着我们每个人的日常生活。目前,我国对小区物业的管理主要是实行业主自治的管理模式,即由全体业主自行决定小区物业的管理及维护等问题。然而,我国对业主自治的管理模式仅对原则性问题进行了规定,对具体的管理措施没有给出明确的答案。2007年颁布的《物权法》只是对小区的物业管理进行了原则性的规定,指出由业主自行决定物业小区的管理,即业主自治。但是对业主自治的具体措施却规定的模糊不清,或者说业主自治的制度在具体运用上存在立法缺失。业主自治主要是指小区的某一共同管理事务通过业主投票权来决定,即业主通过“举手表决”来表达自己对小区的某一管理事项的同意与否。因此,业主表决权是业主自治的具体体现,对业主自治有着至关重要的作用。然而,目前我国法律对于业主表决权的主体范围、表决权确定的标准及表决权的决议规则等核心问题都没有具体的规定,以至于在实践中业主表决权的行使遇到众多困难。到目前为止,业主表决权制度的具体操作方法及措施并没有具体、明确的法律规定,理论界对此问题也因存在诸多争议而没有给予明确的指导,导致实践中业主行使其表决权时会面临诸多困境以致无法解决的问题,业主自治的法律原则犹如形同虚设,并没能发挥其实际作用。业主的表决权关乎于我们每个小区的物业管理,关乎于我们每个人的生活环境,关乎于我们每个业主对物业管理的权利问题,是业主自治的充分体现,因而我们应重视业主表决权制度的具体施行。现阶段由于立法上对业主表决权制度具体操作上存在缺失,理论界因“声音不统一”也没能给出明确的指导,以至于实践中业主表决权制度很难具体的落到实处。因此,本论文选题具有较为明显的理论价值和现实意义。就理论价值而言,本项研究对业主表决权的法理基础、行使方式和程序、行使效力以及权利保护展开全面的理论分析,从而使业主表决权制度在理论上得以完备;就现实意义而言,本项研究有助于我国对当前立法中有关业主表决权的规定加以完善建议,有助于规范业主表决权的确认、行使、保障等全过程,有助于在法治的框架下推动业主自治的实现。此外,还能对涉及业主表决权的司法实践起到积极的指导作用。
[Abstract]:Our daily life area is mainly a residential area, so the quality of residential property directly affects our daily life. At present, the management of residential property in our country is mainly to implement the management mode of owner autonomy, that is, all the owners decide the management and maintenance of the residential property by themselves. However, the management mode of owner autonomy in our country has only stipulated the principle question, and has not given the clear answer to the concrete management measure. The property Law promulgated in 2007 only has carried on the principle stipulation to the real estate management of the community. It is pointed out that the owner decides the management of the property district by himself, that is, the owner's autonomy. However, the specific measures of owner autonomy are vague, or the system of owner autonomy is lack of legislation. Owner autonomy mainly refers to a common management business in a community to decide through the voting rights of the owner, that is, the owner expresses his consent to a certain management matter by "show of hands". Therefore, the owner's voting right is the concrete embodiment of owner's autonomy, and plays a vital role in owner's autonomy. However, at present, the law of our country has no specific provisions for the scope of the main body of the owner's voting right, the standard for the determination of the voting right and the rules for the resolution of the voting right, so that in practice, the exercise of the owner's voting right encounters many difficulties. Up to now, the concrete operation methods and measures of the owner's voting right system have not specific, clear legal stipulation, the theorists have not given clear guidance to this question because there are many disputes. As a result, the owners will face many difficult problems when they exercise their voting rights in practice. The legal principle of owner autonomy is just like a virtual one, and fails to play its practical role. The voting rights of the owners are related to the property management of each of our communities, to the living environment of each of us, to the rights of each of our owners to the management of the property, and to the full embodiment of the autonomy of the owners, Therefore, we should attach importance to the implementation of the owners voting rights system. At the present stage, because of the lack of legislation on the concrete operation of the owner's voting system, the theoretical circle is unable to give clear guidance because of "disunity of voice", so it is very difficult to implement the owner's voting right system in practice. Therefore, this thesis has obvious theoretical value and practical significance. As far as the theoretical value is concerned, this study makes a comprehensive theoretical analysis of the legal basis, the exercise mode and procedure, the effectiveness of the exercise and the protection of the right of owners' voting rights, thus making the system of owners' voting rights complete in theory. As far as practical significance is concerned, this study is helpful to perfect and suggest the provisions of current legislation on owners' voting rights in our country, and to standardize the whole process of confirming, exercising and safeguarding owners' voting rights. It is helpful to promote the realization of owner autonomy under the framework of rule of law. In addition, it can also play a positive guiding role in the judicial practice involving owners' voting rights.
【学位授予单位】：四川师范大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.2

【参考文献】