| The essence of residential special maintenance fund is a management tool set up for the convenience of the owners to exercise the right of co-management.However,the owner has the ownership of the funds,does not mean that the owners must conduct self-management.Under the background of limited management ability,legislation does not focus on enhancing the management capacity of owners,But hope that through the government escrow maintenance fund,property service enterprise escrow maintenance services,transfer of owners of common management responsibilities.But the problem is,management business of special maintenance fund was transferred,But the long-term risk of residential building maintenance has not been transferred,The responsibility of building maintenance management is the responsibility of the owners of residential areas.To the government escrow mode of special maintenance fund,as external administrative power,it is difficult for the government to understand the status quo of building maintenance,and difficult to determine whether the extraction of special maintenance funds,and difficult to intervene in the process of micro governance,balancing the interests of all parties in the use of special maintenance funds.Therefore,government agencies tend to sacrifice the convenient and efficient use of funds,Set up a number of management procedures to protect the safety of funds.However,it is difficult for the owners to supervise the proper exercise of the administrative power of the government,to expose the scandal that the collection of 500 billion maintenance funds,but secretly increase the value outside the system.The loopholes of corruption in the management of government escrow,proves that the government funds safety is difficult to guarantee in the escrow system.The government escrow mode suffer two aspects of capital security,efficiency of capital use.For a long time in the government escrow mode,many owners believe that the responsibility for building maintenance management lies in the government,thus appear the old district maintenance problems,more difficult to form a sense of responsibility to actively maintain management area.Therefore,the legislative idea of transferring owners' management responsibility,should be changed to provide the perfect system guarantee for the owner's self management.In the specific system settings,The incentive mechanism should be used to facilitate the owners to fulfill the management responsibilities of special maintenance funds,enhance the ability of independent management,to promote the value of residential quarters.On the legislative goal,should be targeted to promote the use of special maintenance funds,in this process,pay attention to the legal control of administrative power,to maintain financial security.The legislation of special maintenance fund for owner self management mode,The first problem is the design of the system model.It is necessary to emphasize the importance of the owner's responsibility and government regulation.On legislative ideas,one side,In the case of residential area is unknown,owners organization is difficult to set up,owner's right to know is difficult to protect,owners do not fulfill the responsibility of self-management.Even if the owners have the courage to maintain the interests of the owners of collective owners,elite owners are also difficult to bear significant responsibility pressure if no systematic design and protection.Therefore,we must lay foundation for all owners to assume responsibility.At this stage,the positive significance of the system design includes,the construction of the system of condominium ownership,community owners should be set up,construction of mutually beneficial cooperation,mutual trust and participation in the voting mechanism;Finally,the construction of the relief mechanism of the common interests of the owners,protect the enthusiasm of the owners remedies for common interests.On the other hand,government regulation is the necessary condition to promote the owner self-management order in good operation.On the concept of supervision,government regulation is a "limited intervention",to form a variety of effective models in the process of self management funds;government supervision is an effective intervention,the purpose of intervention is to form an efficient self governance,to overcome the lack of authority and inefficiency in the process of capital operation.In the specific measures of supervision,the government should formulate the plan to support community autonomy,cultivate the third party social institutions(such as owners association,maintenance services property assessment agencies,occupation managers)growth,formulated financial support programs on the basis of specific project.Therefore,the necessary government supervision contains the dual meaning of support assistance and order regulation.The second problem of the special maintenance fund legislation is the overall construction of the system.First is to build what kind of maintenance fund management subject system.Under the current situation,the "monopoly" business governance structure dominated community governance led by the property business,if funds dominated by property companies,funds should out of control,on behalf of the signature,false signature case is proved.Establish the owners group,the organization of the district instead of individual contract,while considering the actual needs of large communities,in order to establish a real close connection to the safeguard mechanism of common interests.But more importantly,to establish a voting mechanism and participation system which is conducive to the owners to fulfill their management responsibilities,construct the management mechanism of the rule of law for the owners' organizations.Secondly,collection and continued,use,preserve and increase value,they are three systems of special maintenance fund,respectively produce three major problems,that is "collection and continued difficult" ? "difficult to use" ? "difficult to preserve and increase value",therefore,this paper is to solve the problem.Exclude the visual angle that attribute the problem to the quality of the people,from the perspective of legal system,there are major defects on the basis of the establishment of the system,the protection of the rights of public participation,the scientific nature of the legislation,the completeness of the legislative system,that the "three difficulties" is not a single institution or administrative orders can be solved.But collect to a point,the overall solution is to ensure the safety of the use of funds,the real democratic participation in the process,a reasonable division of specific procedures for specific circumstances.In this regard,the legislation should pay full attention to the importance of modern network information technology for the protection of the rights of owners."Difficult to use" is the core of "three difficulties",only to solve this problem,can really solve "collection and continued difficult" ? "difficult to preserve and increase value".Finally,the construction of the autonomy and supervision overall order of maintenance funds,has just created a prototype of a autonomous community and community public revenue system.The future,as the basic income system,the source should be more abundant,and preserve and increase value through financial operations,in this process,the district public governance structure is more perfect.democratic governance mechanism and community public funds system model will be gradually formed.It will make people more profound understanding,social public interest and democratic politics are not the unilateral administrative control,but from the grass-roots governance of social finance.It is not only a public finance in the sense of the state,but also the autonomous capital management system.In the final sense,a good community governance is the fundamental source of good governance,the two are closely integrated.In addition to the introduction,the main body of the thesis consists of seven chapters.The first three chapters focus on the theoretical basis of owner's self management mode of residential special maintenance fund,from the history and experience of foreign countries,legislative incentives of self responsibility,the necessity of government regulation,etc.The last four chapter focuses on the construction of legal system,conduct a comprehensive interpretation from the main organization system,collection and continued system,use and expenditure system,finance management etc.The first chapter,the historical evolution and the extraterritorial investigation of the special maintenance fund management model.First of all,this chapter explores the historical context of the formation and evolution of the legal system of residential special maintenance fund management in China,Demonstrate the important role of the government's strong push and the awakening of the consciousness of individual private rights in the process of institutional change.Secondly,it analyzes the institutional attributes of special maintenance funds,It is pointed out that the nature of the special maintenance fund is decided by the capital rather than the fund,mainly decided by the management practice of our residential quarters in our country.At the same time,the government escrow mode gradually shows disadvantages after the government's excessive intervention in social affairs.In this paper,combined with the related legislation and management model about housing common part maintenance in major countries and regions,pointed out that the owner of special maintenance fund is the main trend of international legislation,the relevant legislation should focus on the construction of the owner's own management system,encourage owners to actively take responsibility,but at the same time,the necessary supervision and assistance obligation of the government is the guarantee of the system running well.The second chapter is the owner's responsibility of the special maintenance fundThis chapter is mainly to solve theoretical problem,why owners to manage special maintenance funds,the feasibility of owner's special maintenance fund,as well as how to construct the legislative incentive for the owners to carry out their own management responsibilities.First of all,this chapter argues that,under the condition that the owner's self-management ability is limited,the legislation focuses on the transfer of special maintenance funds to other subjects,but whether it is the government escrow or property enterprise on behalf of the maintenance,the owners are not exempt from the ultimate responsibility for the consequences.Secondly,from the theory of distinguishing ownership,the government gradually withdraw from the reform of the micro management,the feasibility of the reform of the owner's self-management model,and so on,owner self-management model has practical feasibility.Again,the key issue is how to motivate the owners to fulfill the obligation of active management.Therefore,it is necessary to reform the theory of condominium ownership,to determine the right border of the owners' community;In the system,it is necessary to reform the owner's organization,the owners' convention,the voting mechanism and the relief mechanism,establish institutional basis that the owners responsible for common interests.The third chapter,the government regulation of owner's self-management mode of residential special maintenance fundThis chapter is mainly to answer whether the owner self-management model needs government regulation?the theoretical basis of government regulation?how to supervise the behavior of the owner's special maintenance fund.First of all,owner's self-management behavior has the risk of abuse of right,At the same time easy to fall into the dilemma of collective action,All these ills determine the necessity of government regulation.However,there is also a necessary intervention limit for government regulation,the legal principle of government supervision,the principle of limited intervention,Principles of service and assistance should be established.Government regulation is not restricted,but on the premise of legal supervision,support the body none of governance capacity,at the same time,the effective mode of the fund management is optimized.Pay attention to the selection of specific rules in the process of supervision,such as regulatory objectives,timing,regulatory objects,to establish a perfect legal system of supervision on the establishment and development of owner's self-management organization,fund accumulation and continued,fund use and maintenance.The fourth chapter is about the legal construction of owner's self-management organization of residential special maintenance fundOwners' Congress is the core self-management organization of the special maintenance fund.A sound and well functioning system of the owners' Congress and the owners' committee,is the key to realize the independent management.This chapter starts from the reality of community governance in our country,argument it is a historical necessity that transformation from the monopoly business governance structure dominated by property service enterprises to the public governance structure dominated by the owners.The design of specific legal system should consider that the present situation of large scale residential district in China and the convenience of external contact,regulating the behavior of government agencies,set up building owners committee system,set up the supervision system of the proprietor committee,protect the owner's right to know.In the system construction,two aspects are emphasized,First,we should pay attention to the establishment of the statute legislature,to achieve the supervision of the owners of the community.Second,it's significant that owner self-management organization should be legal person,but at the same time should learn from the experience of countries,to solve the problem of the external responsibility of owners' self management organization.The fifth chapter,collection and continued of residential special maintenance funds under self-management modeCollection and continued is the premise of special maintenance funds use.The current legislation take the government mandatory escrow collection mode,owners do not have independent centralized organization,the future to establish the owner autonomous collection mode,must first improve the transfer control system,on the basis of establishing the legal status of the owners,establish compulsory collection duty system and responsibility system of owners.In other ways,first of all,the legislation should not relax the necessary supervision,protect account options for the management of bank of owners.In addition to the establishment of the main account of the outdoor,should be based on the principle of benefit to set up a joint account.Secondly,it needs to be improved on collection basis,collection subject determined,the old residential maintenance funds to build up;Again,in addition to focusing on the improvement of legal rules,we should establish the specific rules that the district public revenue supplement for the special maintenance fund,based on the characteristics of China's public revenue.The sixth chapter is about the legal problems of the use of special maintenance fund under the self-management modeExpenditure is the core issue of special maintenance funds.The expenditure of special maintenance fund is the process of public management and decision making,the concept of legislation should pay attention to the combination of property security and expenditure efficiency.First,we need to set up a detailed budget decision-making process in general procedure for expenditure.In the specific use of voting rules,attention should be paid to the scientific understanding of the maintenance of the owners,on this basis,combined with the democratic vote.The modern network information technology provides the convenience for the protection of the right to participate and the right of supervision,legislation should pay full attention to its significance in solving the problem of traditional voting decision rules.Secondly,decision making rules for special use of emergency maintenance is not a measure of equity,the core idea lies in the owner's right to adequate housing,the legislation shall trust and empower the owners to organize the corresponding disposal rights and give necessary government assistance.The seventh chapter,financial management of residential special maintenance fund under the self-management mode.This part is to solve the concept and system design of maintaining and increasing the value of fund.This chapter considers,the goal is not to maximize the value of financial investments,But in the area of property security and improve the level of community management.Therefore,the construction of the legal system of the public property insurance for the special maintenance fund,both to achieve the value of capital appreciation,and help reduce the owners pay responsibility,reduce the financial pressure on the common part.When investing in other financial products,legislation should pay attention to the program design of financial safety supervision.The last part is conclusion and outlookThis section first explains the ideal owners' managing model of the special maintenance fund in the transformation of residential district governance,this governance model is the organic governance of multi subject co governance,and based on the owner's own responsibility for the management.At the same time,the author thinks that the reasonable self-management model provides a good institutional environment for the development and acquisition of owner's self-management ability;The owners of self-management capabilities,shaping the spirit of public participation and responsibility consciousness,therefore,it is helpful to form a social self-management system based on property rights and realize the modernization of social governance. |
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