住宅“群租”法律规制研究
发布时间：2018-09-05 08:36
【摘要】：“群租”己成为一个热词,但是对何谓“群租”却缺乏一个较为统一的概念。一般来说,“群租”是指房屋所有权人将其住宅房屋分别向两个以上的承租人出租或者房屋的第一一承租人将租赁的房屋部分或者全部转租给其他两个以上的承租人的行为。目前主要有三种形式：一种是将客厅、厨房甚至阳台分割成若干个小单间,然后按小单间出租；另一种是在一间房内安放多张床位,按照床位出租。还有一种形式是原房东并不直接分割房屋,而是将房屋整套出租给某一单位作为其单位宿舍。“群租”现象由来己久,在我国上海、北京、广州、重庆等流动人口较多的大中城市“群租”如雨后春笋般不断涌现,其背后具有复杂的社会背景。它虽然能够满足一部分付不起高房租的低收入群体的住房需求,但是不可否认的是“群租”也给邻里、小区的安全、环境卫生甚至物业管理带来了困扰,影响了小区内其他业主的正常生活与居住质量,由此引发社会的强烈不满也是情理之中。正是“群租”所产生的消极影响,部分地区、部门加大了对“群租”行为的规范和查处力度。“群租”问题日益引起人们的关注,逐渐从一个社会问题演变成了法律问题。因此,对“群租”法律规制的研究具有重要的现实意义。本文共5部分。第一部分是导论,主要阐述了因“群租”引发的社会问题及法律争议,论证了对“群租”进行法律规制的必要性。在总结、分析相关的研究成果的基础上,表明了本文的研究思路与方法。第二部分,文章探讨了“群租”行为的法律性质问题,梳理了理论界关于“群租”合法与否的观点争议,并指出“群租”本身并不违法。第三部分的内容主要从自由与限制理论、相邻关系理论、建筑物区分所有权理论三个角度分析了对“群租”行为进行规制的法理基础。第四部分则在私法的框架内,围绕住宅“群租”主体的权利义务关系,探究出租人、承租人、小区内其他业主以及物业管理公司在其中应享有的权利及负担的义务与责任。第五部分在总结借鉴国内外有关“群租”法律规制经验的基础上,提出了以公法、私法相结合的模式对“群租”行为进行治理的策略。一方面,在私权领域内,充分发扬私法自治的精神,尊重主体的意思自治自由,重视房屋租赁合同、物业服务合同以及业主管理规约的规制作用,以期实现承租人的生存居住权、出租人的财产权与小区其他业主的休息权、环境权之间的和谐相处。另一方面,从维护社会秩序,保障公共利益,追求效率最大化和成本最低化的需要出发,论证了公权力介入“群租”市场的必要性,主张公权力应适度介入以规范群租市场,并且变一禁了之的“懒政”思维为积极作为,以事先许可为主,整治行动为辅。希望能够通过公私法两方面的配合,实现对“群租”行为标本兼治的目的,最终达到在既不削弱各方居住品质的同时,满足最大范围的居住需求的目标。
[Abstract]:"Group rent" has become a hot word, but there is a lack of a more unified concept of what is "group rent". Generally speaking, "group rent" refers to the owner of the house to rent the house to two or more lessees respectively or the first lessee of the house will lease the house to two other lessees in part or all. There are three main forms of tenant's behavior: one is to divide the living room, kitchen and even balcony into several small single rooms, and then rent by small single rooms; the other is to put more beds in a room, according to the bed rental. Another form is the original landlord does not directly split the house, but rent out the whole house. The phenomenon of "group rent" has a long history. In Shanghai, Beijing, Guangzhou, Chongqing and other large and medium-sized cities with large floating population, "group rent" is springing up, which has a complex social background. Although it can meet the housing needs of some low-income groups who can not afford high rent, But it is undeniable that "group rent" has also brought troubles to neighborhood, community security, environmental hygiene and even property management, affecting the normal life and quality of living of other owners in the community, which triggered a strong social discontent is also reasonable. It is the negative impact of "group rent" and in some areas, the Department has increased the number of people. The problem of "group rent" has attracted more and more people's attention, and has gradually evolved from a social problem into a legal problem. Therefore, the study of the legal regulation of "group rent" has important practical significance. This paper consists of five parts. On the basis of summarizing and analyzing the relevant research results, this paper shows the ideas and methods of this study. In the second part, the article discusses the legal nature of the act of "group rent", combs the controversies in the theoretical circles about the legality of "group rent", and discusses the legal nature of the act of "group rent". The third part mainly analyzes the legal basis of regulating the behavior of "group rent" from three perspectives: freedom and restriction theory, adjacent relationship theory and the theory of distinguished ownership of buildings. The fifth part, on the basis of summarizing and drawing lessons from the domestic and foreign legal regulation experience of "group rent", puts forward the strategy of "group rent" behavior governance by combining public law with private law. On the one hand, in the field of private rights, we should give full play to the spirit of autonomy of private law, respect the freedom of autonomy of the subject's will, attach importance to the regulation of housing lease contracts, property service contracts and owner's management regulations, so as to realize the harmony between lessee's right of subsistence, lessor's right of property and other owners'right of rest and environmental rights. On the other hand, starting from the need of maintaining social order, safeguarding public interests, pursuing maximum efficiency and minimizing cost, this paper demonstrates the necessity of public power intervening in the market of group rent, and advocates that public power should intervene moderately to regulate the market of group rent, and change the banned thinking of "lazy government" into active action with prior permission. It is hoped that through the cooperation of public law and private law, the root cause and root cause of the "group rent" behavior can be achieved, and the goal of satisfying the widest range of housing needs while not weakening the living quality of all parties can be achieved.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.6;D922.29
本文编号：2223750
[Abstract]:"Group rent" has become a hot word, but there is a lack of a more unified concept of what is "group rent". Generally speaking, "group rent" refers to the owner of the house to rent the house to two or more lessees respectively or the first lessee of the house will lease the house to two other lessees in part or all. There are three main forms of tenant's behavior: one is to divide the living room, kitchen and even balcony into several small single rooms, and then rent by small single rooms; the other is to put more beds in a room, according to the bed rental. Another form is the original landlord does not directly split the house, but rent out the whole house. The phenomenon of "group rent" has a long history. In Shanghai, Beijing, Guangzhou, Chongqing and other large and medium-sized cities with large floating population, "group rent" is springing up, which has a complex social background. Although it can meet the housing needs of some low-income groups who can not afford high rent, But it is undeniable that "group rent" has also brought troubles to neighborhood, community security, environmental hygiene and even property management, affecting the normal life and quality of living of other owners in the community, which triggered a strong social discontent is also reasonable. It is the negative impact of "group rent" and in some areas, the Department has increased the number of people. The problem of "group rent" has attracted more and more people's attention, and has gradually evolved from a social problem into a legal problem. Therefore, the study of the legal regulation of "group rent" has important practical significance. This paper consists of five parts. On the basis of summarizing and analyzing the relevant research results, this paper shows the ideas and methods of this study. In the second part, the article discusses the legal nature of the act of "group rent", combs the controversies in the theoretical circles about the legality of "group rent", and discusses the legal nature of the act of "group rent". The third part mainly analyzes the legal basis of regulating the behavior of "group rent" from three perspectives: freedom and restriction theory, adjacent relationship theory and the theory of distinguished ownership of buildings. The fifth part, on the basis of summarizing and drawing lessons from the domestic and foreign legal regulation experience of "group rent", puts forward the strategy of "group rent" behavior governance by combining public law with private law. On the one hand, in the field of private rights, we should give full play to the spirit of autonomy of private law, respect the freedom of autonomy of the subject's will, attach importance to the regulation of housing lease contracts, property service contracts and owner's management regulations, so as to realize the harmony between lessee's right of subsistence, lessor's right of property and other owners'right of rest and environmental rights. On the other hand, starting from the need of maintaining social order, safeguarding public interests, pursuing maximum efficiency and minimizing cost, this paper demonstrates the necessity of public power intervening in the market of group rent, and advocates that public power should intervene moderately to regulate the market of group rent, and change the banned thinking of "lazy government" into active action with prior permission. It is hoped that through the cooperation of public law and private law, the root cause and root cause of the "group rent" behavior can be achieved, and the goal of satisfying the widest range of housing needs while not weakening the living quality of all parties can be achieved.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.6;D922.29
【参考文献】
相关期刊论文 前3条
1 费婧;;由“群租”引发的思考[J];中国房地产;2009年11期
2 徐海燕;;论物业规约的法律效力[J];法学论坛;2008年02期
3 王雪琴;;对“群租”问题的民法思考[J];政治与法律;2007年03期
，本文编号：2223750
本文链接：https://www.wllwen.com/falvlunwen/xingzhengfalunwen/2223750.html
