On The Remedy Of Opponents Against The Resolution Of Proprietors' Group

According to China's laws and regulations, the resolution of proprietors' group is an important form to exercise the owners' rights and participate in the management of the property areas for the owners. China's Property Law regulates the matters shall be jointly decided by proprietors. Otherwise, "The Property Law" and the relevant judicial interpretation regulate the owners' right of revocation, providing the remedy measures for opponents against the resolution of proprietors' group. Under the establishment of the owners' right of revocation, the interests of the opponents are protected to a certain extent. But some problems still exist in the judicial practice, which has hindered the realization of the legislative purpose of the owners' cancellation right. The paper probes into ten typical cases concerning the dispute on owners' cancellation right from following five parts, the problems existing in the judicial practice are found regarding the remedy measures for the opponents towards the resolution. To solve these problems and improve present remedy measures, the paper uses the laws and regulations of Partitioned Ownership of Building Areas in Japan for reference and proposes the appropriate measures.Part one: Through the analysis of current situations about judicial,administrative means on remedy of opponents against the resolution and the settlement mechanism of the owners' group, the significance of the owners' cancellation right and relevant administrative remedial methods are affirmed. Meanwhile, the owners' group and other autonomous organizations in the property areas, are energetically exploring the methods to solve the problems and put them into practice. The endeavor is an important supplement to all kinds of legal methods on remedy of opponents.Part two: Ten typical cases in judicial practice are analyzed, pointing out the specific problems of judicial remedy towards opponents in the jurisdictional practice, including the proof difficulties of the owners, the subject of the right to vote is not clear, higher professional quality requirements for the owners, the resolution should not be revoked etc. It is due to some of the drawbacks and limitations of the law, which leads to the exercise of the owners' cancellation right cannot effectively protect their legitimate rights and interests.Part three: The legal basis or legitimacy of opponents' remedy is analyzed in the third part. The foundation of the Majority Rule is to keep the balance between the principles of fairness and efficiency, to ensure the implementation of the resolution of the proprietors' group. When the resolution of the owners' group has lost its legitimacy, no one has the obligation to sacrifice his own interests for the others. At the same time, it differentiates the opponents towards the owners' meeting and the opponents against owners' committee, illuminating the differences of the remedy.Part four: It focuses on the improvement of the voting mechanism used by proprietors' group on the ground of lawsuit of owners' cancellation right to forestall the possible trouble. These improvement suggestions include defining the subject of the voting right, setting up the exit mechanism for the opponents of the resolution and giving them vetoes to the resolution. All those methods aim to avoid the risk of single ex post remedial method and realize the autonomy of owners, saving judicial resources.Part five: The improvement methods of owners' cancellation right system are presented basing on the problems that exist in the judicial remedy used for protecting the interests of opponents against the resolution. These improvement methods are mainly based on the present ex post remedial system, distributing the burden of proof reasonably, and the establishment of declaratory judgment of the invalid resolution. The two reasonable proposals are provided to protect the interests of owners when they are seeking for the judicial remedy.