On The Protection Of The Owner's Right In The Property Management

On March 16, 2007, the National People's Congress formally passed The Real Rights Law People's Republic of China, which established a system of condominium, and filled the long-standing blank in Chinese legislation for the first time. And also the system of condominium is the prerequisite and foundation of property management. According to The Real Rights Law People's Republic of China, the State Council revised Property Management Ordinance in which"property management enterprise"is revised to"property service enterprise". And this revision is not just a simple revision in writing; it is the philosophy and purpose of Chinese property management.Property management relates closely to the mass's life and work. But in daily life, the behaviors of violations on the proprietors'rights appear repeatedly that the proprietors'legitimate rights and interests are encroached continually, as a result, the relationship between owners of some districts and property management enterprise is highly tense. The protection theory of proprietors'rights is the important part of property management theory; what is more, it is a realistic problem that needs solving. In the western developed countries and regions, property management theory was already a mature legal system; the importance of property management is confirmed and affirmed by the practice of the developed countries. But in China, the specialized property management starts much later, the related rules and regulations are not perfect, lacking of specialized ability and service conception in property management leads to a large numbers of violations on proprietors'rights. Although The Real Rights Law People's Republic of China has been promulgated, in practice the proprietors'rights still lack effective protection. Whether from the property management theory, or from the perspective of practice, it is very important to protect the rights of owners. In the theory of the traditional property management, scholars elaborate the protection of the rights of property owners mostly from the perspectives of the constitutional law, of the economic law, and of the administration. But this article dicusses from the perspective of the Civil and Commercial Law. In addition to introduction and conclusion, this paper is divided into four parts:Partâ… :Outline of property management. Modern property management is proprietors or property service enterpris entrusted by autonomous organizations composed by proprietors maintain and manage property districts, the main body property management is all the proprietors, rather than property services enterprises. Property management based on condominium originates from and depends on, subjects to ownership, so property management has the nature of property rights. The proprietor congress is autonomous body of all proprietors, the proprietors are the members of the proprietor congress, and they exist the relationship between rights and obligations. The relation among the proprietors, property service enterprises and other service providers is a kind of relationship based on the entrust contract, the proprietors are at trustees'position, the property service enterprises and other service providers are at the trustees'position based on the entrust contract. The proprietors enjoy the proper property rights and communal property rights and the use relations to the property districts.Partâ…¡:Forms of violations on owner's rights in the property management. The proprietors'rights vary, taking the rights of owners as the standard; the proprietors'rights can be divided into the personal shared rights and interests of proper parts and the communal shared rights and interests of common and public parts. Due to the variety of proprietors'rights, the forms of violations to the proprietors'rights are various. And in the early-stage property management the forms of violations to the proprietors'rights of developers reflect violations to the proprietors'rights to know, the false advertisements and propagandas on owners, and the earnest money traps set by developers. And in the late-stage property management includes the violation to the property rights and interests of the owners and the violation to personal rights and interests of the owners.Partâ…¢:Protection theory of the owners in the property management. As for repeated violations of the proprietors'rights, a system on how to protect proprietors'rights is the urgent need to solve. Private autonomy is the basic principle of civil law, condominium is the system in private law, and based on condominium in line with the intended autonomy of private law. Under the condominium, because the number of owners increases, inevitably leads to the increase of the negotiation cost or policy-making cost, thus making the common property right uneconomical; at the same time, some owners do not agree with the majority of all owners and adhere stubbornly to their own opinions, or owners produce the faction, and break their relation, transaction cost of property right or the collective decision-making cost is extremely high, even causes the collective decision-making impossible, thus producing the transaction cost theory and the theory of avoiding the question of both sides'monopoly. In addition, the proprietors of the modern property districts are hundreds of or thousands of people, the decentralization of the collective decision-making is clearly not feasible, so that collectivization of third-party decision-making theory becomes the inevitable choice.Partâ…£:Countermeasures and suggestions of the protection of owners'rights. Although The Real Rights Law People's Republic of China provides the protection of proprietors'rights and interests, it is not perfect. Therefore, we should perfect the relevant regulations and clarify legal status of the proprietors'congress, entrusting them with legal personality; and also we should limit the rights of the proprietors'congress and developers and balance rights and obligations among the bodies related to proprietors; and we should correct the guide principles of the property management and perfect proprietor's autonomy, advance proprietors'awareness to protect and defend their legal rights and perfect the legal rules and systems of Chinese property management from every aspect, and thus protect the proprietors'rights.