【作者】 王珉；

【导师】 段匡；

【作者基本信息】 复旦大学 ， 民商法学， 2014， 博士

【摘要】 建筑物区分所有权中的成员权是指建筑物区分所有权人基于一栋建筑物的构造、权利归属以及使用上的密切关系而形成的作为建筑物管理团体成员之一所享有的权利和承担的义务。成员权的存在,既是各区分所有权人对所在区分建筑物范围内的共有部分享有共有持份关系的重要体现,同时也是各区分所有权人正常生活秩序的必要保障。因而,成员权在建筑物区分所有权中占有重要地位。成员权是专有权和共有权的延伸,但它本身又是一项独立的权利,兼具物法性和人法性属性,不仅包括所有权的财产关系,还包括财产的管理关系,应当说在成员权行使过程中,即在对专有、共有部分财产的处分、收益上与专有权、共有权内容有所交错和重叠。从实务上看,建筑物构造的整体性与所有(占有)权利的局部性特征,使得不同组成单元的所有人在行使其各自所有权时相互之间极易发生冲突或出现侵犯他人所有权的情况。因此,各区分所有权人在保障自己专有和共有部分权利的同时,也必须承担不损害其他成员对他们的所有部分享有的权利及区分建筑物所有人整体利益的义务。从建筑物区分所有权的历史发展来看,一方面说明我们不能将成员权孤立起来进行研究,而一定要与专有权、共有权结合在三元论的背景下探讨；另一方面也表明,成员权是一项非常特殊的权利,我们应该对成员权行使中的特殊性问题展开研究。本文共分为五章。第一章论述成员权基本理论。传统民法是以个体完全所有物体为基础定义所有权理论的,对于成员权这种权利形式还没有存在和发展的理论奠基,故学术界对于成员权的定义没有达成共识。通常,民事权利体系可以分为财产权、人格权、知识产权、亲属权和社员权。社员权涵盖了成员权。社员权是基于社员资格及其地位,社员在社团享有的概括性权利。我国立法尚未建立完善的社员权制度,建筑物区分所有权人的成员权、合作社社员权、集体经济组织成员的权利等类型的社员权也多由法规和规章进行调整。《物权法》、《民法通则》都未明确提出社员权的概念,更没有对社员的相关权利义务作出具体规定,故今后立法要加强对社员权的法律保护。在立法上,成员权是建筑物区分所有权概念内容的发展、演进的结果。通览近代以来域外有关建筑物区分所有权的立法历史,域外立法的演进自始至终都是围绕区分所有者个人与团体间利益的平衡而展开的。在此过程中,三元论全面地涵盖了因区分建筑物构造和权利归属特点所决定的各区分所有权人间的三个方面的权利义务关系。三元论承认成员权是区分所有权的构成要素之一,对调节区分所有者个人与团体之间的共同利益关系甚有裨益。成员权与专有权和共有权相比,具有其自身内容和独立特征,应进行专门研究。第二章论述成员权与共有权行使的关系。共有权,是建筑物区分所有权中的物法性要素,它与另一物法性要素专有权一同构成建筑物区分所有权制度的核心。成员权是专有权和共有权的延伸,对共有权进行研究有助于丰富对成员权内涵的理解。物权法中一般共有规则并不能调整一切包含共有因素的共有权,建筑物区分所有权中的共有则最具有代表性。共有部分是共有权的客体,通常具有不可分性和从属性特征,明确共有部分有助于确定区分所有权人成员权行使的范围。各国(地区)立法分别采用列举、推定、概括等方法判定共有部分的范围。借鉴域外模式,我国立法应采用推定、概括加列举三种模式对共有部分予以界定,具体应将概括模式下共有部分的界定标准具体化为实质标准和形式标准,即在构造上或性质上供共同使用及其他依合意设定为共有,并予以公示的建筑部分。这一判断标准应结合推定模式进行验证,即有必要明确专有部分的范围,才能据此进一步确定共有部分。在明确专有部分判断标准时,我国司法解释即运用了概括模式对专有部分的实质标准和形式标准进行认定。区分所有建筑物共有权的法律性质有其特殊性,既不同于单纯的按份共有,也不同于普通共同共有,而是一种有限的按份共有。第三章论述成员权行使限制的法理分析。作为自由的个体,人总是要追求个人价值的,而每个人所追求的价值不同,呈现出多元化的特征,因而个体之间在追求价值目标的过程中就可能发生冲突。区分所有建筑物中的业主团体与个别业主之间的关系也正体现了市民社会中这一新的发展趋势,法治也必然随之更新和建构。在建筑物区分所有权制度框架下,购房者接受区分所有权方案中出售的房屋单元,获得房屋的专有所有权。区分所有建筑内的房屋单元在结构上紧密相连,且建筑区划内的社区生活更加频繁,团体性更强,建筑物区分所有权的这些特征证明,个人专有所有权行使并不是绝对至上的,在共有环境下须受到一定限制,这在域外各国(地区)立法中都有所体现,其表现为对专有所有权与共有所有权的限制。但对于业主权利的限制也并非是绝对的、盲目的,只有这种限制具有正当性才符合法律制定的精神和业主的需要。第四章论述我国成员权行使的现状及合理范围。为了维持建筑物各部分的基本功能和维系全体区分所有权人的共同生活秩序,协调彼此之间的利益矛盾,必须凭借管理团体组织的力量去妥善处理各项共同事务。从各国(地区)立法实践和司法判例的发展演进可以看出,承认或有条件地承认区分所有权人管理团体的法人人格已经成为一种基本趋势。我国《物权法》、《物业管理条例》、《物业服务司法解释》和《建筑物区分所有权司法解释》均未赋予业主大会、业主委员会以法人人格,也并未对其法律性质与地位作出明确界定。但实践中由业主委员会作为当事人参与有关业主共同利益的诉讼。在物业服务领域,应借鉴发达国家和地区的做法,确立业主团体的法律地位,在业主团体与物业服务企业之间建立起直接的法律关系,明确物业企业物业费请求权的相对人为业主团体,既可简化另行向业主起诉的司法程序,也有利于节省个别交涉的时间和成本。在建筑物区分所有权中,对业主财产权及决策权进行限制也是必须的。我国对专有权常见的限制主要包括不得妨碍建筑物的正常使用和不当毁损建筑物,以及不得违反全体业主的共同利益。对于共有权,我国法律及法院司法实践以列举方法规定了区分所有权人的禁止性义务,即各区分所有权人应当合理使用共有部分,不得违背该部分的目的、性质及构造而为妨害建筑物正常使用功能的行为,不得擅自改变该部分的结构和设施,不得损害业主的共同生活秩序。综合相关法律及案例,法院在判断行为是否属合理使用时具体运用如下思路：首先,遵循小区业主的自治规约。如果业主未就共有部分的使用作出约定,则应当依照民事习惯、一般社会观念及公平合理原则作出判定,而《物权法》以禁止性义务规范作为此参照标准。由于我国业主团体地位不强,自治规约无法起到明显作用。在区分所有建筑物中,仍然由法律对业主的权利范围进行调整,即较多采用的是绝对禁止性规定。然而,美国更为强调业主的合意性,体现意思自治原则。所以小区自治规约成为各小区特有的规范,只要不违反法律规定,并符合“规约有效性判断标准”即可对业主形成拘束。因此,美国业主权利标准一定程度上要严于我国。在限制业主决策权方面,对于受到业主大会决策影响的少数方,我国立法仅规定业主对于该决策侵害其自身利益的,可以请求人民法院予以撤销。但基于物业小区自治性特征,在决策未违反法律规定的情形下应该予以支持,但应当立法对业主之间权益进行调整,即对该部分少数者利益的保障和救济予以明确规定。最后,由于我国业主团体地位较弱,因而实践中物业企业往往成为重要的管理主体,而非业主,物业企业与业主之间存在着利益分歧。在这一情形下,物业与业主间的侵权纠纷层出不穷。据此,物业企业应加强安全保障义务以加强对业主权利损害的救济,完善小区内的业主权益保护。第五章论述成员权行使的立法规范及其完善。首先,确立物业小区自治主体地位。业主大会和业主委员会在现实的物业管理中占有极其重要的地位。然而,我国并未承认业主团体的诉讼资格而仅承认业主委员会的诉讼地位仍然不足以理顺理论及实务上的物业管理法律关系。我国应参考域外立法例和司法实务的做法,在法律中规定业主大会的法人资格,并在此基础上厘清业主大会和业主委员会的关系,完善业主委员会参与诉讼的条件、程序等配套性规范。其次,明确成员权行使的范围。在建筑物区分所有权制度中,基于区分所有建筑物特性,各专有权人形成共同体关系,因而个人与集体权利间的利益平衡成为核心。成员权对财产权行使的约束表现在专有权和共有权方面。在协调业主个体权利与团体共同利益的过程中,并不仅仅是简单地对行为合法或非法作出判断的问题。很多时候,争议主体双方的主张可能都具有一定正当性,故此时我们必须基于建筑物区分所有权法律尊重个体权利、维护团体利益的角度综合考虑。相应地,美国在司法实务中确立的一系列标准用以辅助对“合理使用”界限的判断,值得我国借鉴。此外,业主成员权对决策权应当予以限制,而我国《物权法》和《物业管理条例》并未对业主之间权益的调整做出规定,即缺乏如域外立法判例对于少数者利益的保障和救济,建议进一步细化、完善我国关于业主异议权、撤销权的规定,并且在多数方与少数方业主协商不成或形成僵局时,我国立法应规定业主的退出机制,这是使决议顺利进行又使不利益者得到保护的最后屏障。最后,确立业主财产保险制度,主要包括灾难性的意外事故保险和侵权责任保险。在准确确定两种保险之前,美国业主共有公寓侵权行为法的做法给予我们启示。更多还原

【Abstract】 The membership in the condominium ownership means the rights enjoyed and the obligation assumed by the condominium owner as a member of the building management group based on the structure of a building, the attribution of rights, and the close relationship arising from the use. The existing of the membership is not only an important reflection of common fractional relations enjoyed by the condominium owners on the common section in the differentiation building owned by them but also a necessary guarantee for the condominium owners to maintain a normal living order. Therefore, the membership plays a significant role in the condominium ownership. The membership is an extension of the exclusive right and the co-ownership. However, it is an independent right alone, combining the attribute of both the law of kinds and the law of persons. It includes not only the financial relationship of the ownership, but the management relationship of the properties as well. One should say that exercise of the membership intersects and overlaps with the exclusive right and the co-ownership in terms of the disposal and proceeds of the exclusive and common part of the properties. In terms of practice, the integrity of the building structure as well as the localized feature of the right of ownership (possession) makes it extremely easy for conflicts or encroachment upon other’s title to occur among the owners of different units when they exercise their respective ownership. Therefore, when they are safeguarding their own rights over the exclusive or common sections, the condominium owners must also be obligated not to impair the rights enjoyed by other members over their parts as well as the overall interests of the condominium owners. From the perspective of the historical development in the condominium ownership, on one hand, we should not isolate the membership in our study; instead, we shall explore it in the background of the triarchic theory in combination with the exclusive right and the co-ownership. On the other hand, the membership is an extremely special right. That is why we should study the specificity in the exercise of the membership. This dissertation comprises of five chapters.Chapter One expounds the basic theories on the membership. The traditional civil law defines the theory on the membership on the basis of the objects that are wholly owned by individuals. There exists and develops no theoretical foundations for the membership. Therefore, the academic circle has not reached consensus on the definition of the membership. The system of the civil rights normally consists of the property right, the right of personality, the intellectual property, the right of relatives, and the right of members. The right of members covers the membership. It is the generalized right enjoyed by the members in a group based on its qualification and status. No perfect system for the right of members has been established in terms of legislature in our country. The right of members including the membership of the condominium owners, the right of members of the cooperative, and the right of the members of a collective economic organization is normally adjusted by the rules and regulations. No concept of the right of members is mentioned explicitly in either the Property Law or the General Principles of the Civil Law. Nor is there any concrete provision on the relevant rights and obligations of the members. Therefore, the legislators should strengthen the legal protection of the right of members in the future. In terms of the legislature, the membership is an outcome of the development and evolution of the concept of the condominium ownership. Looking into the history of the legislature on the condominium ownership in all countries or districts in the modern times, one can find that the evolution of the legislature has always been centering on the balance over the interests between the individual owner and the group. In this process, the triarchic theory wholly covers the relationship of rights and obligations in three areas of the condominium owners determined by the differentiation building structure and the attribute of the rights. This theory admits that the membership is one of the components of the condominium ownership, helping adjust the common interest relationship between the individual condominium owners and the group. The membership, in comparison with the exclusive right and the co-ownership, has its unique content and independent features, which should be studied specially.Chapter Two deals with the relationship between exercise of the membership and the co-ownership. Co-ownership is en element concerning the law of kinds in the condominium ownership. It constitutes the core of the system of the condominium ownership along with the exclusive right, another element involving the law of kinds. The membership is an extension of the exclusive right and the co-ownership. It helps understand the connotation of the membership to study the co-ownership. The general co-ownership in the Property Law cannot adjust all of the co-ownership comprising the common factors. The co-ownership in the condominium ownership is the most representative. The common part is the object of the co-ownership, normally featuring indivisibility and subordination. It helps identify the scope of the membership exercised by the condominium owners to determine the common part. The legislators in the world normally determine the scope of the common part by means of enumeration, presumption, and summarization. Learning from the overseas modes, the legislators in our country define the scope of the common part by three modes, e.g. presumption, summarization and enumeration. The criteria defining the common part in the summarization mode should be divided into the substantive criteria and the formal criteria, i.e. the building part that is defined as common based on the common use in terms of structure or nature plus other consensus as well as is announced. These criteria should be verified in combination with the presumption mode, namely it is necessary to identify the scope of the exclusive part to further identify the common part. When identifying the criteria for the common part, the judicial interpretation in our country adopts the summarization mode to determine the substantive and formal criteria of the common part. The laws dealing with the co-ownership of the condominium ownership is special. It is different from both the pure several possession and the normal joint possession. Instead, it is a limited several possession.Chapter Three expounds the nomological analysis of the restriction on exercising the membership. The human being, as a free individual, always seeks the individual value. The difference in each value results in diversity. Therefore, it is likely to have conflicts in the course of the pursuit of the value targets between the individuals. The relationship between the individual owner and the owners group in the condominium ownership buildings reflects this new development trend in the civic society. Consequently, the rule of law will be updated and constructed. In the frame of the system of the condominium ownership, house buyers accept the units sold according to the condominium ownership program to obtain the exclusive ownership of the house. The units in the condominium buildings are closely connected in terms of structure. Furthermore, the community life in the building is more frequent and the team spirit is stronger. These features of the condominium ownership prove that exercise of the individual exclusive ownership is not absolute and supreme; instead, it is restricted to certain extent in the common environment, which is demonstrated in the overseas legislature, i.e. the restriction on the exclusive ownership and the co-ownership. However, the restriction on the owner’s rights is not absolute and blind. Only when it is legitimate can it reconcile with the spirit of law making and the need of the owners.Chapter Four addresses the realistic conditions and reasonable scope of exercising the membership by owners in our country. In order to maintain the basic functions of all parts in a building, to safeguard the common living order of all owners, and to coordinate their conflicts in interests, we must deal with all common matters properly with the help of the management group and organization. It is shown by the development and evolution of the legislature practice and judicial precedent in all countries (regions) that it is a basic trend to acknowledge with or without conditions the corporate personality of the condominium owner management group. Although the Property Law, the Regulations on Property Management, and the Judicial Interpretation of the Condominium Ownership have neither granted the owner’s general meeting and the owner commission the corporate personality nor explicitly defined their legal nature and status, the owner commission has participated, as a litigant, in actions concerning the common interests together with the relevant owners in practice. In terms of the property management, we should learn from the practice in developed countries and regions, namely establishing the legal status.of the owner group, establishing the direct legal relationship between the owner group and the property management company, and identifying the counterpart claiming for the property management fee as the owner group. This will not only simplify the judicial procedures of suing the owner in a separate case, but help save the time and costs of individual negotiations as well. In terms of the condominium ownership, it is also necessary to restrict the property right and decision-making right of the owners. The common restrictions on the exclusive right in our country mainly include no interference with the normal use of the building and no damage to the building as well as no violation of the common interests of the entire owners. As for the co-ownership, our laws and the court practice stipulate the prohibitive obligations of the condominium owners by means of enumeration, i.e. that the condominium owners shall reasonably use the common part, that they shall not perpetrate acts affecting the normal use of the building in violation of the objective, nature, and structure of the said part, that they shall not take the liberty to change the structure and facilities of the said part, that they shall not violate the common interests of the entire owners. To summarize the relevant laws and the foregoing cases, when a court decides whether the act is the normal use, it usually adopts the following train of thought. Firstly, the self-management stipulations of an agreement made by the owners shall be followed. In the event that the owners fail to agree on the use of the common part, the determination will be made based on the civil habits, the general social ideas and the principle of fairness and reasonableness. Moreover, the Property Law takes the prohibitive obligatory norm as the reference standard. The status of the owner group in our country is not strong. Nor can the self-management stipulations play any obvious role. In terms of the differentiation buildings, the scope of the owner’s rights is still adjusted by the law, namely the absolute prohibitive provisions are more adopted. Nevertheless, the US attaches more importance to the desirability of the owners. The principle of autonomy of will is reflected. Therefore, the self-management stipulations are the specific norms in each neighborhood. As long as they are not in violation of the law, they reconcile with the "criteria for the effect of the stipulations". Therefore, the criteria for owner’s rights in the US are stricter than those in China to certain extent. In terms of restrictions on the decision-making right of the owners, our laws only stipulate that the minority affected by the decision made by the owners general meeting may apply to the People’s Court for cancellation in the event that such decision encroaches upon their interests. However, based on the features of autonomy in a housing development, although the said decision should be supported as long as it is not in violation of the law, the interests and rights among the owners should be adjusted through legislature, i.e. there should be explicit provisions on the safeguarding and relief of the interests of the said minority. Finally, due to the comparatively weak status of the owner group in our country, the property management company instead of the owner has normally become the important management subject in practice. There are differences between them in terms of interests. Under such circumstance, there are numerous disputes over torts between the property and the owners. Therefore, the property management company shall strengthen safety guarantee obligation to perfect the protection of the rights and interests of the owners in the housing development.Chapter Five expounds the legislation and its improvement in terms of exercising the membership by the owners. To begin with, establish the status of the autonomous body in the community. The owners’general meeting and the owner commission play a significant role in the realistic property management. However, China has not acknowledged the litigation qualification of the owner group; instead, only the litigation status of the owner commission is acknowledged. This is insufficient to straighten out the property management legal relations both in theory and in practice. Our country should learn from the overseas legislature examples and judicial practice to stipulate the corporate qualification of the owner’s general meeting. Furthermore, based on it, the relationship between the general meeting and the owner commission should be straightened out so that the supporting norms concerning the conditions and procedures of the owner commission’s participation in litigations can be perfected. Next, clarify the scope of exercising the membership. In the system for the condominium ownership, based on the features of the differentiation buildings the exclusive owners form the community relationship. Therefore, the balance of interests between the individual and the collective rights becomes the core. The restriction of the membership on the exercise of property right lies in the exclusive right and the co-ownership. In the process of coordinating the individual interests of the owners and the common interests of the group, it is anything but simple to determine whether the act is legal or illegal. In many cases, the claims of both parties may be legitimate to a certain extent. Therefore, we must consider the issued from the perspective that the law of the condominium ownership respects the individual rights and maintains the group interests. Accordingly, the range of criteria set in the judicial practice in the US to support the determination of the "reasonable use" are worth learning by China. Moreover, the membership of the owners should restrict the decision-making right. However, the Property Law and the Property Management Regulations in our country do not stipulate the adjustment in the rights and interests among the owners, i.e. there is lack of the guarantee and relief of the interests of the minority like the legislature example in other countries. It is suggested that the stipulations on the right to objection and cancellation of the owners be further refined and perfected. In addition, when no consensus can be reached or there is a deadlock between the majority and the minority of the owners, our country should stipulate the withdrawal mechanism of the owners in legislature, which is the last protective screen facilitating the smooth going on of the resolution while protecting the interests. Finally, we should establish the system for owner property insurance including the disastrous accident insurance and tort liability insurance. Before we accurately identify the two kinds of insurance, the practice in the US concerning the tort law on the condominium owners can give us inspirations.更多还原