区分所有建筑物重建法律制度研究

发布时间：2018-05-02 17:09

  本文选题：区分所有建筑物 + 重建　； 参考：《中央财经大学》2016年博士论文

【摘要】：区分所有建筑物重建不仅是区分所有建筑物管理中的重大现实难题,而且还关涉到“居者有其屋”民生思想的实现问题。追本溯源,主要有如下四个方面缘由:其一,重建工程浩大,急需大量资金注入。如今社会是高危风险无处不在、无时不有的时代,地震、火灾、水灾、台风等自然灾害发生日益频繁,造成区分所有建筑物毁损灭失的规模之大面积之广系属空前,例如我国1998年的洪涝灾害和我国2008年汶川地震造成的损害即是。而且区分所有建筑物因年代久远而自然腐朽严重,住房改革30多年来我国城市危房改造等问题日趋凸显,这不仅影响到房主的切身权益,而且还关涉居住权和人权的保护,甚至还会影响到一个国家和地区的稳定。然而,现实中因诸多因素很难筹够重建资金。其二,重建协议难达成。除了获得一定业主同意外,还需满足其他实质构成要件和形式要件,唯有如此,方可进行重建。但事实并非如此,因业主经济能力上的差异,权益衡量标准各异,很难达成重建协议。另外,虽然立法者在重建中尊重了业主意思自治的原则,但因公共利益和公共秩序之需常规定过严的投票机制,致使现实生活中业主之间很难达成重建协议。其三,不同类型区分所有建筑物重建制度不尽相同。因区分所有建筑物毁损灭失原因诸多,常常损害严重、面积广、规模大、牵涉权益主体众多,而导致不同类型区分所有建筑物重建法律制度的规定和立法体系迥然不同,甚至相差甚远。例如,一般区分所有建筑物重建法律制度与灾后区分所有建筑物重建制度即属之。其四,重建中的权益难平衡。重建关涉多方利害关系人,若重建未取得全体业主一致同意,那么难免会形成赞成重建的人对少数反对重建人的强制。另外,区分所有建筑物共用部分上的相关权益人的权益保护也是重建顺利进行的有力保障。为此,民法既然是私法,是人法,就理应对区分所有建筑物的重建进行全面规制,唯有如此,才能体现以人为本的法治理念。然而,我国《物权法》却仅在第76条规定了重建问题,即改建、重建建筑物及其附属设施应当经专有部分占建筑物总面积三分之二以上的业主且人数占总人数三分之二以上的业主同意,其内容十分简略,无法满足现实中重建的需要。目前,国内外对区分所有建筑物重建法律制度的研究主要以行政法的视角进行研究和探讨为主,从私法角度进行研究的文献较为缺乏。本文拟从私法角度对区分所有建筑物重建法律制度进行全面深入研究,并以各国民法、建筑物区分所有权法及国内外有关区分所有建筑物重建法律问题的文献为研究资料,阐述区分所有建筑物重建的概念、种类、理论基础、构成要件及法律效果等基本问题。进而对区分所有建筑物重建进行类型化研究,并将其划分为一般重建类型和特殊重建类型。本文重点剖析了一般重建类型中的全部灭失重建和部分灭失重建,并探讨了巨灾后区分所有建筑物重建和由数栋建筑物构成的小区重建等特殊类型。同时,也对灾后农村住房重建、农村危房重建及城市危房重建等若干重要重建问题及相关特殊问题进行了研讨。最后,本文梳理了我国区分所有建筑物重建有关法律制度,并指出其特点和缺陷,试图借鉴域外成熟完备的区分所有建筑物重建法律制度,构建我国完备的区分所有建筑物重建法律制度,期冀为我国民法典的制定及《物权法》的修改提供立法参考,这不仅具有重大的理论价值,而且具有极强的现实意义。本文共分八章。第一章,导论。主要分析选题背景与选题意义,综述国内外文献,提炼研究内容,归总出本文的研究方法与思路,为全文的研究定下基调。第二章,区分所有建筑物重建一般理论是本文理论基础部分。主要阐述区分所有建筑物的概念及立法与学说,分析了区分所有建筑物重建的概念和种类,进而剖析区分所有建筑物重建的理论。第三章,区分所有建筑物重建的要件。分别阐述了区分所有建筑物重建的物理要件、经济要件、主观要件、主体要件及程序要件五要件。第四章,区分所建筑物重建的权益保护与权益调整。主要论述了反对重建者、第三人、管理团体三者之间的权益保护及重建中开发商权益关系的调整,并探讨了区分所有建筑物不重建法律效果规则。第五章,区分所有建筑物重建的特殊形态。主要对由数栋建筑物构成的小区的重建、城市危房重建及技术性灾后区分所有建筑物重建分别加以论述。第六章,区分所有建筑物部分灭失的修复与重建及全部灭失的再建与重建。按区分所有建筑物毁损灭失程度和重建特殊性标准将其划分为区分所有建筑物重建一般类型和区分所有建筑物重建特殊类型,进而重点剖析一般类型中的区分所有建筑物全部灭失时的修复与重建和部分灭失时的再建与重建问题。第七章,与区分所有建筑物重建有关的灾后农村住房、危房重建。重点剖析了农村危房重建和灾后农村房屋重建两类。第八章,我国区分所有建筑物重建法律制度的完善与建构。具体评议我国区分所有建筑物重建法律制度,指出其具体特点和缺陷,并镜鉴域外完备成熟的区分所有建筑物重建立法理念及制度,构建符合我国国情的区分所有建筑物重建具体规则与相关制度。
[Abstract]:The reconstruction of all buildings is not only a major problem in the management of all buildings, but also related to the realization of the people's livelihood of the people who have their houses. The main reasons are the following four reasons: first, the reconstruction project is great, and a large number of funds are urgently needed. In the non - times, natural disasters, such as earthquakes, fires, floods, and typhoons, are becoming more and more frequent, causing an unprecedented scale of the scale of the destruction of all buildings, such as the floods in 1998 in China and the damage caused by the Wenchuan earthquake of 2008 in our country. Serious, the housing reform for more than 30 years in China has become increasingly prominent, which not only affects the rights and interests of the owners, but also concerns the protection of the right of residence and human rights, and even the stability of a country and region. However, in reality, the reconstruction of funds is difficult because of many factors. Secondly, the reconstruction agreement is difficult to reach. It is not so, but it is not the case, but it is difficult to achieve the reconstruction agreement because of the differences in the owner's economic ability and the standard of equity. In addition, although the legislator respects the principle of owner autonomy in the reconstruction, it is due to the principle of the owner's autonomy. The needs of public interests and public order often stipulate a strict voting mechanism, which makes it difficult for the owners to reach a reconstruction agreement in real life. Thirdly, different types of reconstruction of all buildings are different. Because of the many reasons for the destruction of all buildings, they often suffer serious damage, wide area and large scale, involving a large number of rights and interests. The provisions and legislative systems that lead to different types of reconstruction of all buildings are quite different and even far apart. For example, a general distinction is made between the reconstruction of all buildings and the reconstruction of all buildings after the disaster. Fourthly, it is difficult to balance the rights and interests of the reconstruction. Reconstruction of the multiple stakeholders, if rebuilt, is rebuilt. Without the agreement of all the owners, it is inevitable that the people who approve of the reconstruction are obliged to oppose the reconstruction of the people. In addition, the protection of the rights and interests of the relevant stakeholders on the shared parts of all buildings is also a powerful guarantee for the smooth reconstruction. Only in this way can reconstruction be fully regulated, only in this way can the concept of people based rule of law be embodied. However, China's property law only stipulates the problem of reconstruction, that is, reconstruction, reconstruction of buildings and its subsidiary facilities, which should account for more than 2/3 of the owner of the total area of the building and the number of more than 2/3 of the total number of buildings with the exclusive part. The main agreement, its content is very simple, can not meet the needs of reconstruction in reality. At present, domestic and foreign research on the legal system for the reconstruction of all buildings is mainly studied and discussed in the perspective of administrative law. The literature from the perspective of private law is relatively short. This paper is to distinguish the reconstruction of all buildings from the perspective of private law. A comprehensive and thorough study of the law system is carried out, and the literature of the civil law of various countries, the law of distinguishing the ownership of buildings and the relevant documents on the reconstruction of all buildings at home and abroad is studied, and the basic problems such as the concept, type, theoretical basis, constitutive requirements and legal effects of the reconstruction of all buildings are expounded. The reconstruction is typed and divided into the general reconstruction type and the special reconstruction type. This paper focuses on the analysis of the total loss reconstruction and partial loss reconstruction in the general reconstruction types, and discusses the special types of the reconstruction of all buildings and the reconstruction of the residential areas made up of several buildings after the catastrophe. The reconstruction of village housing, the reconstruction of rural housing and the reconstruction of the urban crisis house and other important problems are discussed. Finally, this paper combs the legal system of the reconstruction of all buildings in our country, and points out its characteristics and defects, and tries to draw lessons from the mature and complete legal system for the reconstruction of all buildings. Building a complete legal system for the reconstruction of all building reconstruction in China, hoping to provide legislative reference for the formulation of our national code and the amendment of the property law. This is not only of great theoretical value but also of great practical significance. This article is divided into eight chapters. Chapter 1, introduction. This paper mainly analyzes the background and significance of the topic, and summarizes the domestic and foreign language. In the second chapter, the general theory of the reconstruction of all buildings is the basic part of this paper. The concept of distinguishing all buildings, the legislation and theory, the concept and types of the reconstruction of all buildings are analyzed, and then the analysis is made. The third chapter distinguishes the reconstruction of all buildings. It distinguishes the elements of the reconstruction of all buildings, expounds the physical elements, the economic elements, the subjective elements, the main elements and the procedural elements. The fourth chapter distinguishes the rights protection and the rights and interests adjustment of the reconstruction of the buildings. The third people, the adjustment of the rights and interests of the developers in the rights and interests between the three management groups and the reconstruction of the legal effect rules of all buildings. The fifth chapter distinguishes the special form of the reconstruction of all buildings. Distinguish all building reconstruction separately. The sixth chapter distinguishes the restoration and reconstruction of all the buildings and the reconstruction and reconstruction of all the lost buildings. According to the criteria to distinguish the extent of destruction and the special criteria for the reconstruction of all buildings, it divides them into a general type of reconstruction of all buildings and the distinction of the special reconstruction of all buildings. Type, and then focus on the analysis of the restoration and reconstruction and reconstruction and reconstruction of the general types when all the buildings are lost. The seventh chapter, the rural housing and the reconstruction of rural housing related to the reconstruction of all buildings. The reconstruction of rural housing and the reconstruction of rural housing after the disaster are analyzed in two categories. Eighth chapters, Our country distinguishes the perfection and construction of the legal system for the reconstruction of all buildings. It specifically reviews the legal system of the reconstruction of all buildings in our country, points out its specific characteristics and defects, and mirrors the comprehensive and mature legislative ideas and systems for the reconstruction of all buildings, and constructs the specific rules for the reconstruction of all buildings in accordance with the national conditions of our country. And the related system.

【学位授予单位】：中央财经大学
【学位级别】：博士
【学位授予年份】：2016
【分类号】：D922.297
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本文编号：1834767