论建筑物区分所有权剥夺

发布时间：2018-10-05 10:17

【摘要】：建筑物区分所有权的剥夺,其本质上就是将业主从建筑物区分所有权共同体关系中予以驱逐,为建筑物区分所有权法上的一项特殊制度,是一种惩罚和救济制度。这一制度的设立能很好的应对日益增加的业主破坏建筑物区分所有关系或危及区分所有建筑物存续的行为,对区分所有建筑物的管理有着重大和积极的意义。建筑物区分所有权剥夺制度在中国没有入法,本文以我国应该建立建筑物区分所有权剥夺制度为出发点,首先对建筑物区分所有权剥夺的内涵和理论框架进行梳理,介绍业主成员权和区分所有建筑物之管理等相关概念。其次,通过对外国建筑物区分所有权剥夺制度的立法模式的比较,分析对我国制度设立的借鉴意义。最后,本文对建筑物区分所有权剥夺制度的具体法律制度设立提出一些构想。本文对设立建筑物区分所有权剥夺制度的国家的制度进行比较研究,认为我国应该建立如同德国和日本的建筑物区分所有权剥夺制度。同时总结出了对我国制度建立的借鉴方面:首先,要具体化剥夺建筑物区分所有权的具体情形。其次,要对剥夺区分所有权制度的程序加以规定。此外,要对剥夺方式方法有正确的把握,既要维护其他区分所有权人的权益,也要注意防止剥夺制度的滥用。我国《物权法》第八十三条是业主应当遵守法律、法规以及管理规约,对违反法律、法规和管理规约的行为规定了停止侵害、消除危险、排除妨害、赔偿损失的救济措施。建筑物区分所有权剥夺制度是一种针对严重违反业主义务行为的惩罚措施,故应规定在业主义务法条之后,建议规定在八十三条之后专条叙述。建筑物区分所有权剥夺制度是一种民事制裁、惩罚措施。鉴于此制度甚为严厉,如果规定模糊,势必会造成此制度的乱用或无法适用,所以本文将从制度可行性、责任主体、归责原则和具体法律设计来详细论述区分所有权剥夺制度。同时对建筑物区分所有权剥夺制度的具体法条设置进行大胆的建议。
[Abstract]:The deprivation of building ownership is essentially to expel the owner from the community relationship of building ownership, which is a special system in the law of building ownership, and is a punishment and relief system. The establishment of this system can deal with the increasing number of building owners breaking up the relationship between all buildings or endangering the existence of all buildings. It is of great and positive significance to the management of all buildings. The system of deprivation of building ownership has not entered the law in China. In this paper, we should establish the system of deprivation of ownership of building division as the starting point, first of all, to sort out the connotation and theoretical framework of the deprivation of building ownership. This paper introduces the concept of owner's membership right and management of all buildings. Secondly, by comparing the legislative models of the foreign building ownership deprivation system, the paper analyzes the significance of the establishment of the system in our country. Finally, this paper puts forward some ideas on the establishment of the specific legal system of building ownership deprivation system. This paper makes a comparative study on the system of building condominium deprivation system in our country, and holds that China should establish the system of building ownership deprivation system like that of Germany and Japan. At the same time, it summarizes the reference to the establishment of our system: first, the specific situation of deprivation of ownership of buildings. Secondly, the procedure of deprivation of differentiated ownership system should be stipulated. In addition, we should have a correct grasp of the ways and means of deprivation, not only to safeguard the rights and interests of other differentiated owners, but also to prevent the abuse of the deprivation system. Article 83 of our country's "Real right Law" is that the owner should abide by the laws, regulations and management rules, and stipulate the relief measures to stop the infringement, eliminate the danger, remove the obstruction and compensate for the loss. The system of deprivation of building ownership is a kind of punishment measure for serious breach of owner's obligation, so it should be stipulated after the owner's obligation law, and then it is suggested that it should be stated after 83 articles. The system of deprivation of building ownership is a kind of civil sanction and punishment measure. In view of this system is very strict, if the provisions are vague, it will inevitably lead to the misuse of the system or can not be applied, so this paper will discuss the system of differentiated ownership deprivation in detail from the feasibility of the system, the subject of responsibility, the principle of imputation and the specific legal design. At the same time, the specific provisions of the system of deprivation of ownership of buildings are proposed boldly.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.2

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