Legal Research On Individual Cooperative Building-construction

In China, individual cooperative building-construction is a mode formed spontaneously by folks. Due to the lack of legal regulations, this mode of building-construction faces many judicial problems now. Starting from investigating its origin and development, this article analyses its necessity. This article also reviews the legislation of several jurisdictions and then puts forward proposals on its development tendency in China and on the solution of relative judicial problems. Restricted by the author's academic standards, the opinions in this article remain to be improved and experts' suggestions are expected.In China, individual cooperative building-construction refers to the mode by which natural persons as the civil legal subject enter into an agreement for the purpose of get low cost buildings to form a cooperative organization to bid a piece of land independently, employ professional companies to deign and construct, and finally gain the property right of the buildings. It is quite different from the traditional mode in which a unit organizes the funds-collection for cooperative building-construction.In view of the distorted development of the building prices caused by the monopoly of developers on the real estate market in China, individual cooperative building-construction has many obvious advantages, including the price preference, capital security, estate management, flexible design, investment profit, diverse purchase channels, variety supervision, etc. It plays an important role in completing Chinese buildings supply system.But now because of the lack of relative legal regulations individual cooperative building-construction in China faces many judicial problems: undefined subject legal nature, high judicial risk, possibility of dishonest, ambiguous judicial responsibility and so on. These factors greatly restrict the development of individual cooperative building-construction in China. So it must get certain restrict and support by legislation to get in the sound and ordered development orbit.Inspecting the history of cooperative building-construction aboard, and drawing lessons from it, China should legislate for setting up cooperative association to regulate the individual cooperative building-construction. It is helpful for the development of real estate market, for people's settlement rights, and for the development and complete of Chinese judicial theories on cooperative association as well. In view of the situation of Chinese legislation, it is the advisable way is to make "Building association law" which will be an amendment of "Temporary provisions on building association in cities and towns"."Building association law" should solve the following problems.A. The nature of the cooperative association is defined as legal person of cooperative association. It may be referred to the legal person of social association in the practical administration because of the lack of related theories and laws.B. Building association in China should have two modes to coexisting in the long term: open-ended and close-ended.C. The initiators should be individual or some government agency, and the qualification of association members should not be confined to 'middle-low income' or 'economically difficult'.D. The establishment, modification and expiration of the association should be decided by the initiators or members' convention and reported to the estate administrative department of the county government or above to get approved and go through relative formalities.E. The management framework of the association should include members' convention, the board and board of supervisors.F. The association should get the running capital by a series of financing on the basis of members' initial investment. The board should be in charge of the project construction under the supervision of all the members. The estate property right should be the distinct building property rights in nature.G. Supporting policies, such as the preferential policies in taxation and land-purchasing, should be carried out by the governmentH. The association should be of limited liabilities.