住宅商用的法律规制研究

发布时间：2018-05-24 05:31

本文选题：住宅商用 + 区分所有权　；参考：《兰州大学》2017年硕士论文

【摘要】：目前,随着我国市场经济的不断发展,城市化的进程也进一步加快,人们以往的分配式住房形式逐渐被区分所有权的商品住房取代,与此同时由于越来越多的新兴行业寻求低成本高产出的途径,很多初次创业者便瞄准了商品住房的低成本特性,导致住宅商用的现象在近年频发。在我国当前的情势下,国家出台了一系列鼓励自主创业的优惠政策,再加之公司注册限制的进一步放宽等原因,很多在创业初期无力缴纳写字楼等办公场所高昂租金的人便试图将原本居住性的房屋用来从事生产经营活动。由于投资成本低、投资风险小等原因,住宅商用现象在中国这片广袤的土地上早已屡见不鲜,国外也存在着这种现象,比较典型的西方发达国家的对待态度则往往采取“开禁结合”的方式。在我国这种现象背后的利益冲突也是显而易见的,一方面住宅商用有利于业主自主创业、解决就业问题。另一方面,住宅商用通常都会带来一系列严重影响其他业主合法权益的问题,包括噪音污染、环境污染、火灾风险、治安风险等。这些问题破坏了业主原本享有宁静安全的居住环境,也时常引起邻里纠纷等矛盾冲突。为此,我国于2007年颁布的《物权法》对住宅商用现象进行了法律规定:“业主不得违反法律、法规以及管理规约,将住宅改变为经营性用房。业主将住宅改变为经营性用房的,除遵守法律、法规以及管理规约外,应当经有利害关系业主同意。”但是对于如何确定利害关系业主,以及住宅商用的范围等一系列问题都未做详尽说明。为了配合《物权法》的实施,2009年最高法院制定的《最高人民法院关于审理建筑物区分所有权纠纷案件具体应用法律若干问题的解释》对相关问题进行了补充,但是在司法实践中依然存在许多难点。在通往建设法治中国的康庄大道上,可谓一“屋”不治何以治天下?住宅商用背后蕴含的民宅商用问题决不仅仅是一个微观领域的法律与经济问题,它涉及到一个宏观领域的物权法问题,这是关乎民生民计的大事,必须引起立法的高度重视。本文正基于此,作为漫漫法治征程中昂首向前的法律学子,愿尽浑身之绵薄之力,愿为该现象的法律规制提出鄙见,以了却学生为中国法治增砖添瓦之夙愿!
[Abstract]:At present, with the continuous development of the market economy in our country, the process of urbanization has been further accelerated, and people's past forms of distributive housing have gradually been replaced by commodity housing with differentiated ownership. At the same time, as more and more new industries seek low-cost and high-output approaches, many first-time entrepreneurs have aimed at the low-cost nature of commodity housing, which has led to the phenomenon of commercial housing occurring frequently in recent years. Under the current situation in our country, the state has issued a series of preferential policies to encourage independent entrepreneurship, coupled with the further relaxation of company registration restrictions, and so on. Many people who were unable to pay high rents for office space such as office buildings in the early days of their businesses tried to use their original residential homes for productive activities. Because of low investment costs and low investment risks, commercial housing phenomenon has long been common in this vast land of China, and it also exists in foreign countries. More typical Western developed countries tend to adopt the attitude of "open-ban combination". The conflict of interest behind this phenomenon is also obvious in China. On the one hand, commercial housing is conducive to the owners to start their own businesses and solve the employment problem. On the other hand, commercial housing usually brings about a series of problems which seriously affect the legitimate rights and interests of other owners, including noise pollution, environmental pollution, fire risk, public security risk and so on. These problems destroy the peaceful and safe living environment of owners, and often lead to conflicts and conflicts in neighborhood disputes. Therefore, the "Real right Law" promulgated in China in 2007 provides for the phenomenon of commercial housing: "the owner shall not violate the laws, regulations and management rules to change the residence into a commercial house." If an owner changes a residence into a commercial one, he shall, in addition to observing the laws, regulations and management rules, obtain the consent of the interested owner. " However, how to determine the interests of owners, as well as residential commercial scope and a series of issues are not detailed. In order to cooperate with the implementation of the property Law, in 2009, the Supreme Court formulated the interpretation of the Supreme people's Court on the specific application of the law in the hearing of disputes over the division of ownership of buildings. However, there are still many difficulties in judicial practice. On the road leading to the building of a China governed by the rule of law, how can it be said that a "house" does not govern the world? The commercial problem behind the commercial housing is not only a legal and economic problem in a micro field, but also a real right law problem in a macro field, which is a major issue concerning the people's livelihood and must be highly valued by the legislation. This article is based on this, as a law student with his head held high in the long journey of ruling by law, I would like to do my best to put forward my humble ideas for the legal regulation of this phenomenon, and to put forward my long-cherished wish for students to add bricks and tiles to the rule of law in China!
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2

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