The Research On The Regulations Of "the Commercial Use Of Dwelling House"

With the development of the city and society,large number of condominiums built, most city residents living patterns have undergone tremendous changes, gradually developing from the previous allocating houses system into the commercialization of housing. City population is more and more intensive, leading to more accessary commercial demands, and on the influence of these integrated factors, many small-and-medium-sizes enterprises set up in residential area, the commercial use of dwelling house also become more and more prevalent. With the unceasing improvement of people’s living standards,most people not just want to simply have a room to live in,but pay more and more attention to the good living environment. In our country, it is necessary to encourage the development of small and medium-sized enterprises, but also meet the residents’requirement of high-quality living environment. So how to make a choice between the two values, coordinate the relationship of the two aspects, and find out the balance point is crucial. The "commercial use of dwelling house" means that the owner of residential engage in business activities behavior in the condominium ownership of building. Although the article77in "Property Law" and the article10、the articlell in "The Legal Explanations of the Condominium Ownership" have regulations on "the commercial use of dwelling house",but still not completely solve the conflicts and disputes generated by "the commercial use of dwelling house".How to solve the dispute caused by the behavior of "the commercial use of dwelling house" with the least cost is the original intention of writing of this paper.On the basis of "the commercial use of dwelling house" of domestic and international legal regulation, this paper presents a detailed analysis of the existing research literature and finds out the problem.The present research of "the commercial use of dwelling house" mainly focus on the aspects of the judicial relief of the "the commercial use of dwelling house" dispute,the existing problems of "the commercial use of dwelling houses",change the land and building use of "the commercial use of dwelling house",but not pay attention to the legislative foundation of "the commercial use of dwelling house". Based on the theory of condominium ownership,this paper detailedly analyses the legislative foundation of "the commercial use of dwelling houses",and illustrates the immanent connection between the exclusive ownership and the joint ownership of condominium ownership and "the commercial use of dwelling houses".Generally speaking,what management statute prescribes is the exercise of the joint ownership of common section and the membership right of common management, not involved with the exercise of exclusive ownership of exclusive part,but if the exercise behaviour of some exclusive part has no influence to other owners’living interests, it should be ruled in management statute. Based on the understanding of the nature and functions of management statute,the establishment and revision program of management statute,this paper detailedly analyses the article on "the commercial use of dwelling houses" in management statute.At present,there are three types of "the commercial use of dwelling house":commercial and residential composite-type,the owner or lessee changes the residential house into business premises and after the completion of new housing,the developers changes in housing purposes.this paper carries on detailed analysis of the three types of "the commercial use of dwelling house" for changing the residential house into business premises,the transformation were experienced from absolute prohibition to relative prohibition in comparative method.with the development of the society,many commercial activities have less influence on its surroundings,especially with the development of the computer and the internet,There are quite a few commercial behavior which can undertake at home, it is becoming more and more popular to home office,in this case,there is no practical significance if we still insist on absolute prohibition of "the commercial use of dwelling house".The author thinks that it should use relative prohibition principle in our country,as long as the commercial behavior has no influence to other owners’living interests,besides if it is proceeding business activities only in the exclusive part of the owners,we should allow the behavior continued to exist. This paper analyzes the legal regulation of "the commercial use of dwelling house" in our country from the Property Law, property management, urban planning, land management and real estate management,ect,and lists the foreign countries’legal regulations to "the commercial use of dwelling house",such as the United States, France,Germany,on the basis of in contrast to domestic and abroad legal regulations on "the commercial use of dwelling house",finds out the defect of the legal regulation in "the commercial use of dwelling house"of our country.the primary defect of the legal regulation in "residential business"of our country contains Agreement for unknown in management statute,the non strictness of legislative stipulation,and the looseness of judicial practice.when the management statute is in violation of related laws and regulations or against the wish of building separating ownership,then there are flaws in management statute,and there is no regulations to the flaws in management statute in the legislation of our country. In the provisions of related laws,the regulations on the scope of business of "the commercial use of dwelling house" is still undefined, without the regulations of administrative examination and approval procedures of "the commercial use of dwelling house",and the settlement system of dispute of "the commercial use of dwelling house" is not perfect in judicial practice.This paper gives some suggestion to perfect the legal regulation of "the commercial use of dwelling house" in our country:one is perfecting management statute,the establishment of management statute can’t be in violation of laws and regulations,and against t the wish of most owners, we can comprehensively consider the both factors, perfect the legal regulations of "the commercial use of dwelling house" in management statute;the second is perfecting legislative norm of the related laws and regulations and its judicial interpretation; the third is the perfection of jurisdiction of doctrine of liability fixation of "the commercial use of dwelling house", defining responsibility system of judicial personnel and perfecting the settlement system of dispute of "the commercial use of dwelling house", hoping to benefit the perfection to the legal regulations of the problem of "the commercial use of dwelling houses"...