On The Governance Structure Of Condominium Associations

Unit owners organizing condominium associations to govern separately-owned buildings is universal in China.Facing the higher demands of modern comprehensive management of city and community,condominium associations play a major role in improving people's happiness.However,China has not yet established a comprehensive and structurally complete legal norm system for condominium associations,which has become an institutional constraint on the role of condominium associations.At the level of law,the legislation adopts an evasive attitude or cursory provisions on some major issues;however,the supplementary provisions of administrative regulations,local regulations,rules and judicial interpretations have very limited effects.The article puts forward the basic idea of reconstructing the governance structure of the condominium associations in an all-round way,and tries to set forth suggestions to improve the provisions of laws and regulations,by not only focusing on the hot issues in the current law and in practice,but also tracking the legislative process of China's Civil Code and the local regulations in recent years.The article is divided into six parts.The first part raises questions.Under the influence of multiple factors,there are still various problems in governing the separately-owned buildings,such as the difficulty in setting up the owners' congress or owners' committee,the difficulty in performing duties,and a lack of supervision.Besides,the division of authority and responsibility is not clear among the subjects of governance.Proposing suggestions for optimizing the governance structure of condominium associations will help solve problems of separately-owned buildings and improve the level of governance of urban and rural communities.The second part discusses the legal status and governance structure of condominium associations.The article believes that the condominium association,that is,the owners' congress,should be given a legal-person personality.First of all,the condominium association has a solid foundation;secondly,the condominium association has independent property,and the legal system can also design rules for debt settlement;thirdly,a legal-person personality should be given is discussing the question from the perspective of law in the “ought to be” side,and the provisions of China's Civil Code on non-profit legal persons leave some space for the legal system;finally,in terms of social functions,it is conducive to strengthening the autonomy of condominium associations and saving transaction and management costs.Although condominium association does not belong to the for-profit legal person,but it's a common choice toseparate the decision-making,execution and supervision when the organization has reached a certain stage.Therefore,the governance structure of condominium associations can draw lessons from the corporate governance experience,and introduce the governance mode of balancing among the power body,the executive body and the supervisory body.The third,fourth and fifth part discuss the power body,the executive body and the supervisory body of the condominium association respectively.The power body and executive body of the condominium association are owners' congress and owners' committee correspondingly.The paper focuses on the analysis of the gains and losses of the laws and regulations and the local laws and regulations issued in the past three years.It is pointed out that at the level of laws or administrative regulations,the responsibilities of the power body and the executive body should be supplemented,the establishment conditions of the power body should be relaxed,and the difficulty of the establishment of the executive body should be reduced.We should further optimize the operation procedures of the power body and the executive body in view of the practical problems.The biggest omission in the current governance structure of condominium association is that there is no supervisory body in the condominium associations.The lack of supervisory body will not only lead to the centralization of the executive body of the condominium association,but also lead to the transfer of interests,which will affect the operation efficiency of the condominium association and reduce the trust of the unit owners.The external supervision from the district and county real estate administrative departments,sub district offices and township people's governments should focus on prior guidance,and should only passively supervise the operation of the condominium association whether it is legal and compliant,which can not replace the role of the supervisory body.The article holds that the law should clearly stipulate that when the condominium association approach is adopted to manage the separately-owned buildings,a supervisory body should be set up and the duties should be specified.The sixth part summarizes the previous research framework and results.Living and working in peace and contentment has always been the pursuit of the Chinese nation.It is suggested that we should sum up the practical experience of legislation and judicature in different places,and constantly improving the governance structure of condominium associations.