建筑物区分所有之成员权行使问题研究

发布时间：2018-05-23 08:18

本文选题：建筑物区分所有权 + 成员权行使　；参考：《郑州大学》2015年硕士论文

【摘要】：近年来,建筑物区分所有权中的管理性权利——成员权的重要性日益彰显。事实上,我国《物权法》在成员权的性质界定、权利行使及救济等方面并未提供明确的指导。为了解决因法律缺位造成的种种不便,有效地保护业主利益,本文拟通过对国外(地区)成员权制度进行比较研究,对我国现行制度运行中存在的问题进行梳理,并为我国成员权制度的完善提供可行性建议。本文由以下五个章节组成:第一章是成员权的概念及性质界定。在“三元论”的基础上,“物法性说”和“人法性说”都难以包容成员权的性质,应当将成员权划入社员权范畴,成员权是区别于传统民事权利的独立的新型民事权利。第二章是国外及我国台湾地区成员权行使法律制度的比较法研究。西方各国的成员权行使制度无不受到“三权分立”理论的深刻影响,普遍建立的都是权力机关、执行机关和监督机关的三层模式。德国《住宅所有权法》将住宅所有权人作为一个独立的管理机关,法国对于管理机关的组成人员规定较为灵活多样,以及各个国家对于监督制度的圆滑设置等,都值得我国立法者在立法时,选择性地学习借鉴。第三章是我国建筑物区分所有权中成员权行使存在的问题。由于现行法律存在漏洞,导致了在实践中成员权的行使都存在问题。第四章是成员权行使的理论分析。管理团体是成员权的行使机构,当前各国均趋向于承认管理团体具有法人资格,这便于管理团体以自己的名义行使包括经济活动、司法活动在内的管理职权。区分所有人在不违反强制性规定的前提下,可根据需要自行选择管理方式,这也体现了业主自治精神。业主大会和业主委员会作为决策机构和执行机构,是维持成员权正常行使的重要保证。第五章是我国建筑物区分所有权之成员权行使制度的完善。针对成员权行使中出现的问题,出台一部《建筑物区分所有权法》势在必行,完善业主大会召开机制,明确业委会的法律地位,建立监督机构,以真正维护业主权益。
[Abstract]:In recent years, the importance of management right-member right in building ownership is becoming more and more obvious. In fact, China's Real right Law does not provide clear guidance in defining the nature of membership rights, exercising rights and remedies. In order to solve the inconvenience caused by the absence of law and protect the interests of the owner effectively, this paper intends to make a comparative study of the foreign (regional) member right system, and to sort out the existing problems in the operation of the current system in our country. And provides the feasible suggestion for our country member right system consummation. This paper consists of the following five chapters: the first chapter is the definition of the concept and nature of membership rights. On the basis of "ternary theory", both "material law theory" and "person law nature theory" are difficult to contain the nature of membership rights. Membership rights should be classified into the category of membership rights, which is an independent new civil right which is different from traditional civil rights. The second chapter is a comparative study on the legal system of the exercise of membership rights in foreign countries and Taiwan. The system of exercising member rights in western countries is deeply influenced by the theory of "separation of powers". What is generally established is the three-tiered mode of power organ, executive organ and supervision organ. The German "Law on Housing ownership" regards the owner of the house as an independent administrative organ, and France has more flexible and diverse regulations on the composition of the administrative organ, as well as the sleek setting of the supervisory system in various countries, and so on. It is worth studying and learning selectively when legislating in our country. The third chapter is about the existing problems in the exercise of the member right in the building ownership division in our country. Because of the loopholes in the current law, there are problems in the exercise of the member's right in practice. The fourth chapter is the theoretical analysis of the exercise of membership rights. Management group is the executive body of the member right. At present, all countries tend to recognize that the management group has legal personality, which is convenient for the management group to exercise its administrative power including economic activities and judicial activities in its own name. Differentiation between owners in the premise of not violating mandatory provisions, according to the needs of their own choice of management, which also reflects the spirit of owner autonomy. As a policy-making and executive organ, the owners' Congress and the owners' committee are the important guarantee to maintain the normal exercise of membership rights. The fifth chapter is the perfection of the exercise system of the member right of building division ownership in our country. In view of the problems in the exercise of members' rights, it is imperative to issue a law of building condominium, perfect the convening mechanism of the owners' Congress, clarify the legal status of the industrial committee, and establish the supervisory organization to truly safeguard the owners' rights and interests.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.2

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