业主委员会法律地位问题探究

发布时间：2018-10-30 06:56

【摘要】：业主委员会是业主机构的重要组成部分,它由全体业主推选代表组成,代表全体业主的意志,对内实施管理,对外维护业主合法权益,在物业管理中具有重要的作用和意义。我国的业主委员会制度起步较晚,缺乏全面深入的理论研究,相关法律法规不够完善。因此,研究业主委员会相关法律问题,具有较为重要的理论与现实意义。业主委员会,是由物业管理区域内全体业主选举产生的,为了维护和保障小区内业主共有财产及其他业主共同权益而设立的基层群众自治组织。调研发现,我国的业主委员会尚存在运行不顺畅、相关规章制度不完善、业主参与度不高、选举过程混乱、运转资金困难、办公用房匮乏、维权功能受限、业主对业主委员会信任度缺失等问题。我国的业主委员会制度,目前主要由《物权法》、《物业管理条例》、地方性法规、司法解释以及《业主大会章程》规范。国外和我国港澳台地区的立法对业主委员会的法律地位均有明确的规定,就其立法模式看,主要有法人人格模式、非法人人格模式、附条件的法人人格模式和判例模式四种。通过对上述模式的对比分析,结合我国国情和法律渊源,提出对我国的借鉴意义。对我国的业主委员会,建议赋予其民事诉讼主体地位,但就其实体法地位,应充分借鉴与我国大陆最为相近的台湾立法模式,在以保障业主基本权益为宗旨的前提下,结合我国具体国情和法律现状,创造性的制定适合我国国情的相关法律法规。界定业主委员会的法律地位,需要厘清业主委员会与相关个人与组织(包括业主、业主大会、物业公司等)之间的关系。业主委员会的法律地位,涉及实体法与程序法两个方面。实体法上,可明确业主委员会为“其他组织”,赋予其一定的民事权利能力和民事行为能力。程序法上,可明确业主委员会为“非法人组织”,在民事诉讼中享有原告和被告的诉讼主体资格。
[Abstract]:The owners' committee is an important part of the owner's organization. It is composed of representatives elected by all the owners to represent the will of all the owners, to carry out management at home and to safeguard the lawful rights and interests of the owners, and to play an important role and significance in the property management. The owner committee system of our country starts late, lacks the thorough theoretical research, the related laws and regulations are not perfect. Therefore, it is of great theoretical and practical significance to study the relevant legal issues of owners' committee. The owners' committee is elected by all the owners in the property management area to safeguard and protect the common property and other owners' common rights and interests of the owners in the community. It is found that the owners' committee in our country is not running smoothly, the relevant rules and regulations are not perfect, the participation of the owner is not high, the election process is chaotic, the operation is difficult, the office room is scarce, and the function of protecting the rights is limited. Owners of the lack of trust in the Committee, and other issues. At present, the system of owners' committee in our country is mainly regulated by "property Law", "regulations on property Management", local laws and regulations, judicial interpretation and "articles of Association of owners' Congress". The legislation in foreign countries and in Hong Kong, Macao and Taiwan has clear regulations on the legal status of the owners' committee. In terms of its legislative model, there are four kinds of legislative models: legal personality model, non-legal personality model, conditional juridical person personality model and case model. Through the comparative analysis of the above models, combined with the situation of our country and the origin of the law, this paper puts forward the reference significance to our country. To the owners' committee of our country, it is suggested that it should be given the status of the subject of civil action, but with regard to its substantive law status, it should draw full lessons from the Taiwan legislative model, which is the closest to the mainland of China, under the premise of protecting the owners' basic rights and interests. Combining with our country's specific situation and present situation of law, we creatively make relevant laws and regulations suitable for our country's national conditions. To define the legal status of owners' committees, it is necessary to clarify the relationship between owners' committees and relevant individuals and organizations (including owners, owners' meetings, property companies, etc.). The legal status of owners' committee involves substantive law and procedural law. In substantive law, owners' committee can be defined as "other organization", and it can be endowed with certain capacity of civil rights and civil conduct. In procedural law, the owners' committee can be defined as "non-legal person organization" and enjoy the subject qualification of plaintiff and defendant in civil action.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.2

【共引文献】