Theory Of Co-ownership Of Disposition

Share co-ownership is the elemental form of co-ownership, which is stipulated in theProperty Law. Shared co-owners not only enjoy the right of disposition of commonproperty with other co-owners, but also enjoy that of their due share. This thesis is focuson shared co-owners’ right of disposition of their due share and common property, and thescope and usage of the disposition are defined in this thesis through analysing the basictheory of share co-ownership. Although shared co-ownership is a kind of property, it can’tbe disposed by co-owners. Because the due share is only an abstract right, which is notspecified. This goes against the basic idea of the free disposition of property. What’s more,the disposal of common property is not legally valid until all owners get a consensus. Yet,what if all owners can’t get a consensus? Consequently, this can cause many disputes andissues, which the thesis mainly discusses.Logically, this thesis is divided into four parts:The first part is the study on the issue of shared co-ownership, which is thetheoretical foundation of the entire thesis. As a form of property, shared co-ownership is alegal condition in which more than two co-owners enjoy rights and undertake obligationsof common property by share. Because of including due share, shared co-ownership isdifferent from joint co-ownership. According to due share, co-owners confirm the scope ofrights and obligations in common relationship, and according to the scope, co-ownersenjoy rights and undertake obligations. Therefore, due share becomes the focus of thestudy.The second part is the study on the issue of shared co-owners’ right of disposition ofdue share. Due share, by which shared co-owners confirm the scope of rights andobligations in common relationship, is the premise of shared co-ownership. Sharedco-owners almost enjoy the right of property of due share. As due share is abstract, whenshared co-owners exert right of it, there are particularities, including transfer of due share, establishment of usufructuary right and security interest and abandonment of due sharewhich all require special discussions. Noteworthily, shared co-owners should avoidhurting the interests of other co-owners when they exert their right of disposition.The third part which is the study on the issue of shared co-owners’ right of dispositionof common property contains two aspects: firstly, legal procedure of shared co-owners’disposal of common property; secondly, validity of unauthorized disposition of commonproperty. The Property Law stipulates that shared co-owners’ disposal of common propertyadopts the rule of absolute majority determination.The last part is the study on the issue of common property’ division by sharedco-owners and validity of division. The Property Law stipulates that shared co-owners canask for division without clear engagement. There are two doctrines for validity of division:right transfer doctrine and right determination doctrine. This thesis discusses the twodoctrines respectively, and emphatically discusses the effect caused by division onmortgage right of due share.