Condominium Ownership Of The System Building And Judicial Practices

Condominiums have become one of the most common forms of community ownership of property in modern civil laws, but there are still no rules on condominiums in Chinese civil law. Now the phenomena of condominiums are getting more and more common, so it necessary to regulate the relationship among the owners of those portions. This kind of necessity is in contradiction with lacking rules on condominium.Based on the comparison method, this article looks back the genesis and development of the condominium form of ownership legal system, comes to the conclusion that the condominium concept is defined according to the tri-element theory by analyzing and comparing different theories related to its concept, then conducts further study on its object, contents, property and character, points out that condominium is a kind of compound ownership including exclusive ownership, co-ownership and membership, which has lots of differences with traditional real estate ownership. This article also summarizes and reflects on the development and status quo of Chinese condominium rules, and points out that to establish condominium legal system as soon as possible is Chinese legislators' historic mission. Based on above discussion, the writer reviews primary condominium legal modes in some countries. And by comparing their strong points and deficiencies, the writer has the view that the best legal mode of condominium is to combine the civil law mode and condominium law mode. The writer also puts forward legal thoughts on the main contents of condominium legal structure in China by analyzing related provisions in the draft of Chinese ownership law, suggesting that the condominiums should be defined according to the tri-element theory, namely, definition of membership, basic rights and obligations, forms of using right should be brought into law; the criteria and scope of exclusiveparts should be clarified; the common parts should be defined by the method of enumerating with exceptions. At last, this article, from the aspect of practice, conducts study on the tricky practical problems related to condominium. One problem related to judiciary remedy for disputes among separate owners is in dire need of settlement. The author holds that the subjects of condominium adjacent relationship are owners and users of the whole building, and different remedies for disputes will lead to different legal results; the scope of condominium adjacent violation should be extended; the constitutive requirements of tolerance obligations should be set forth; the legal status of association agreement regulating the condominium adjacent relationship should be established. Another problem is the ownership of the uptown underground park places. The writer holds that the main principle is that the ownership of the underground park place are designed for common ownership by all the unit owners, the developers have retained ownership under certain circumstances which have been brought forward in this article. This article puts forward some immature views on the problems met in the legislative and judiciary practice in condominium with the expectation of getting valuable opinions from others and inspiring deeper and broader study in this area, and finally being helpful to the legislation and judiciary practice in this area.