A Probe Into The Attribution Of Property Right And The Validity Of Circulation Contracts Of Civil Air Defense Parking Spaces In Residential Quarters

Civil air defense parking spaces in residential quarters are rebuilt according to law in accordance with the principle of "combination of peace and war" in civil air defense projects.Since the relevant laws of China's "People's Air Defense Law","Property Law" and other relevant laws do not specify the ownership of civil air defense parking spaces in residential quarters.There are also differences in understanding,leading to frequent occurrences of "different judgments in the same case" in practice.In judicial practice,there are four cases for the identification of the owner of the civil air defense parking space in the residential area:no positive response,the owner is the state,the owner is the developer,and the owner is the owner of the community.Except for cases that did not respond positively,in the sample of cases,most courts tended to identify the country as the owner of the civil air defense parking spaces in residential communities.Combining judicial practice and academic points of view,from the perspective of national defense assets,payment of ex situ construction fees,and guaranteeing the full play of its air defense effectiveness,it is the best choice to identify the owner of the air defense parking space as the state.The "Civil Air Defense Law" only stipulates that investors have the right to use the civil air defense parking spaces in residential areas,and does not further specify who the investors are.In practice,there are two cases for the court to identify investors in civil air defense parking spaces in residential communities:investors are developers;investors are community owners.There are also three situations for the identification criteria of investors:directly defaulting that the developer is an investor;whether the construction cost is raised by the construction unit;whether the construction cost of the air defense parking space is shared with the construction area.Most of the courts identified investors as developers,but this overwhelming bias was caused by the court's inconsistency in determining the investor's standards and the unreasonable distribution of burden of proof.From the perspective of protecting the legal rights of community owners,it should be staged Identify the civil air defense parking space investor:the residential air defense parking space built by the social investment before the commercial house is not sold to the community owner,the developer is the investor;when the community owner purchases the commercial house sold by the developer,all the community owners are investors;After the owner of the community purchases the commercial house sold by the developer,the developer has evidence to prove that the capital cost of building the civil air defense parking space in the community is not included in the transaction price of the commercial house,and the developer is the investor.Since the relevant laws of our country also do not clearly stipulate the effectiveness of the contract for the transfer of civil air defense parking spaces in residential quarters,and there are also different opinions on this issue in theory,resulting in three types of understanding injudicial practice:the contract is valid,the contract is invalid,and the contract is partially Most of the courts recognized the contract for the transfer of civil air defense parking spaces in residential quarters as a valid contract.Combining judicial practice and academic viewpoints,and in accordance with the principle of "distribution of property and debt",as long as it does not belong to the invalid situation stipulated in the "Contract Law",the contract is a valid contract.In order to realize the "same judgment for the same case" of legal disputes over the ownership of property rights and transfer contracts for residential air defense parking spaces in judicial practice,it is the basis to conceptually unify the understanding of the property rights of property protection and transfer contracts for residential air defense parking spaces;The relevant provisions of the civil air defense cartel property ownership and the effectiveness of the transfer contract are the key;of course,while the legislation is still in the transitional stage to be perfected,it is a reasonable choice to unify the refereeing rules by issuing guiding cases.