Residential maintaining fund, commonly known as the life insurance of residential buildings, is related to the maintaining of buildings and social common sharing facilities for years. According to the problems occurred during the development period of domestic real estate, Chinese government realized the importance of establishment of residential maintaining fund. In order to standardize the behavior of real estate developers and safeguard the rights and interests of the buyers, Chinese Ministry of Finance and Ministry of Construction jointly enacted 'Administration Regulation of Residential Common Sharing Facilities and Equipment Maintaining Fund' in 1997 and implemented this regulation in 1998 which has been over 9 years so far. Even though this regulation provides criterion of payment and administration of residential maintaining fund, however, there are institutional imperfection and faultiness. Therefore, ' Administration Regulation of Residential Special Maintaining Fund' (hereinafter referred as 'new regulation', the original one referred as 'old regulation') promulgated in Feb, 2008 has extensively been revamped and perfected on the basis of old regulation, however, there is still something worthy of being explored because of incomplete revision.Focusing on the system of residential maintaining fund, it can be summed up the following issues: the new regulation has not stipulated that 'the buyers should pay 2% of the whole price for the maintaining fund to the seller', which has not fundamentally excluded from the old regulation that developers may collect the residential maintaining fund from the estate owners. As the regulation endows the real estate developers have the collection right of paying in replace of the buyers, it would result in that the huge maintaining fund substantially remains in the hands of developers, and even lead to many shocking cases that many developers and estate management enterprises misappropriate and peculate the residential maintaining fund. Housing ownership certification can not be received and processed on time and building can not be maintained timely, which is inextricably linked to it. Moreover, since public housing has already been sold, the owner right should be transferred. the residential maintaining fund submitted by the owners in accordance with the regulation, the ownership of its right is self-evident, but new regulation follows old regulation which leading to the unknown of its right ownership, or even the estate owners committee can not own the complete self-determination on the use of the residential maintaining fund of after-sale public housing, and still need the approval of executive governing department. The defects of construction quality also bring the pathetic result of repair in advance during quality guarantee period. In order that its own rights will not be harmed, the estate owners committee rouses the litigation to safeguard their rights. Because of the controversy of their legal status or litigation qualification, however, some of them are refused from the court.To all the issues that how to find an appropriate legal way to protect the rights of owners and improve the system of residential maintaining fund, this article innovatively puts forward the legal nature of maintaining fund and the trust legal relationship- rights and liabilities of each party from the vision of Trust Law at the first time, and analyzes the different trust legal relationship according to the characteristics of maintaining fund in different time, and exerts the independent feature of trust property to maintain security of residential maintaining fund. In virtue of trust legal characteristics of residential maintaining, it applies to civil trust to solve the theoretic problem that such legal relationship is stipulated by Trust Law, whereas, it provides the theoretic basis on the legal status and liability of owners committee. According to the features of residential maintaining fund, the owners committee and estate management enterprise, this essay brings forward the view of dual trust. By its social trait, it illustrates the propriety of appropriate administrative intervention of government and opens the idea of setting up the trust supervisor in the residential maintaining fund system with trust principle; and suggests establishing the third utilities service party to avoid excessive administration intervention. Comparing with related system of other countries, it proposes to provide the management corporation status to estate owners commit and raises the detailed proposal to the imperfectionof current related legal system.
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