On Exercising Of Member's Right To The Building Ownership

Member's right comes from the'triadic theory'of Building Ownership. It is based on the theory of citizens'self-governance, and is the result of pursuit for maximum profits of the building. In essence, member's right is a property right of autonomous group. Such right is dependent. It can not exist alone, but relying on the existence of executive right and common right of the building ownership. Member's right is a compound of right and obligation; when exercising the right, owners must undertake relevant obligation. Member's right is also sustainable. As long as the building exists, the building ownership will exist; relationship among the owners could not be dissolved in principle. Owners of member's right have the right to vote, to lay down and modify the statute of management, to vote and to be elected, to select and to dismiss management services, to request, to know and to supervise. At the same time, owners should fulfill the obligations of implementing the decision of owners'meeting, the obligation of observing the management statute, the obligation to obey management of manager, and to pay common costs.The core issue of member's right is how to realize the group self-governance, and to realize the building ownership at last. Owners of the building have the right to choose how to exercise member's right. Currently, formation of autonomous group is much more compatible with the characteristics and the needs of member's right. Under the preconditions of whole participation, majority rule, the principle of reasonableness, extensive representation and separation of powers, the best way to exercise member's right might be to establish a management group.In the realization of member's right, management statute and management group play a significant role; and are the major issues of this essay. As the foundation of exercising member's right, management statute fully embodies the Privatautonomie Characteristic. The statute covers several aspects including the objective conditions of the building, common affairs relating to the building, rights and obligations of the owners, legal responsibilities when break the statute. The statute fully reflects the characteristic of autonomy, and has legal binding force on the owners. It is worth noting that management statute can not violate the mandatory rules of laws and regulations.Management group is the executive body of member's right. With regard to the nature of management group, there are some divergences. The group is proposed to be legal person, non-legal person, or legal person with conditions. This essay argues that management group could be considered as legal person, since it is in line with the trend of the development of management group. The qualification of legal person empowers the group to exercise its management competence, including management of economic and judicial activities, in its own name. The plenary assembly as the decision-making body, and the management committee as the executive body, bear different responsibilities and competences. Both of them play a significant role in the realization of member's right.This essay compares and analyzes the theoretical viewpoints and legislations from different countries, summarizes several issues in controversy and correspondingly proposes some suggestion. The essay also analyzes some hotspot issues and provides feasible solutions, such as who could be the subject of member's right, why it is difficult to convene first Owners'plenary, how to strengthen the supervision right of owners, etc.