The Subject Qualification Of Home Owner’s Association(HOA) Of Condominium In Taiwan

Home Owner’s Association(HOA) of Condominium is an important institution in administration of residential quarters in Taiwan of China. It’s established by condominium proprietors through electing several HOA commissioners from all the householders in order to carry out decision items of owners meeting and manage and maintain the condominium. Referring to its subject qualification, "Regulations on Control of Condominium" promulgated in 1995 provides relevant regulations and clears the rights and duties of HOA. Paragraph 1 of Article 38 of the regulation provides "The committee has the capacity of party". Years of practice also forms "public funds", "litigation take-on", "the suit of the third party discharging the judgement" and other supporting system. However, relevant regulations don’t clear its nature and subject qualification in substantive laws resulting in different opinions in juridical practice and educational circles.In terms of the nature of the committee,although there are disputes of association with no right capability and unincorporated association, it should belong to unincorporated association because it has constitutive requirements of unincorporated association and public funds matching the generalized essential--"independent property". In terms of its acts of civil litigation, the committee has the subject qualification in civil procedure law based on its nature and according to the direct provisions of "Regulations on Control of Condominium". Furthermore, the subject qualification includes both the plaintiff qualification and defendant qualification which should be limited in performing its management responsibilities. The nature of its suit or response to the suit for the householders’ property right should be "litigation take-on". When the HOA is the defendant or sues or responds based on the five cases illustrated by the provision or the judges’ opinions that its behaviour doesn’t need a conference result, the nature is legal litigation take-on.In this case, the condominium proprietor who was not informed and couldn’t participate in action for reasons that cannot attribute responsibility to himself can institute a suit of the third party discharging the judgement to discharge the judgement against him.When the committee sues based on the community rules or a conference result, the nature is litigation take-on by conduct. In this case, the condominium proprietor cannot institute a suit of the third party discharging the judgement because of the procedural guarantee beforehand. Besides, relevant provisions don’t prescribe whether the committee can perform civil juristic acts but they should entitle HOA with civil subject qualification of maintaining and managing the condominium due to practical requirement.The discussion on the subject qualification of Home Owner’s Association of Condominium in Taiwan is significant to the perfection of the owner’s committee system in Chinese mainland. Laws don’t clear the subject qualification of the owner’s committee in mainland China so that many different opinions exist in practice and educational circles. Using for reference of the experience of Taiwan, we may identify the nature of the owner’s committee as "other organizations" in our civil procedure law.The committee shall be entitled with the capacity of party and the capacity for civil rights and civil conduct within limits to perform management responsibility in its acts of civil litigation and civil juristic acts. The system construction includes two aspects--improving laws and regulations to clear the subject status of the owner’s committee and perfecting supporting system to make the committee work more effectively, maintain judicial unity and achieve procedural function.