Study On Civil Legal Issues Of Common Partial Maintenance In The Residence Community

Residential district is the main carrier of building separate ownership in our country.The maintenance of common part is an important content of building differentiated ownership.It is related to the service life of the people’s most important means of living--the house,and it is also related to the maintenance and improvement of the living environment.For the research on the problems related to the common partial maintenance of residential communities,China’s civil law has not formed a system.Although the Civil Code has improved to a certain extent the problems of the differentiated ownership of buildings accumulated during the period of the Property Law,it still cannot fundamentally solve many problems caused by the lack of systematic arrangements in the resident autonomy system of residential communities in China.This paper proposes that the maintenance subjects of the residential community should be considered from three perspectives: the real estate developer,the property service company,the owner individual and the owner group.During the warranty period,the scope of quality warranty liability under special circumstances should be broadened,and the content of quality warranty liability should be further clarified.At the same time,the scope of warranty of real estate developers should be consistent with the scope of building zoning.The realty service companies shall regulate the contents of the realty service contracts and the charging standards of the realty service companies;In terms of individual owners and owners’ groups,the standards for the precise demarcation of adjacent proprietary parts shall be determined.Owners’ groups’ maintenance responsibilities for the common parts shall be determined in accordance with the principle of unity of rights and obligations.Owners who benefit from the maintenance of different common parts shall be subject to the main responsibility of owners’ groups.In view of the resolution procedure of the shared part maintenance in the residential district,this paper proposes that it should be divided into simple repair,general repair and major repair,and the voting rights of different resolutions should be determined in a targeted way.The rules for the use of maintenance funds should also be compared with the owners’ groups corresponding to the common part,and different resolution ratios should be determined according to different repair scales.The sharing of the maintenance costs of the common parts shall be based on the type of common parts.This paper holds that,although the distinction between co-ownership and co-ownership is different from common co-ownership or co-ownership by parts,it has a higher similarity with co-ownership,and it is also an international common practice to deal with cost-sharing by co-ownership.In view of the maintenance funds,About the housing special maintenance fund system,this paper points out that due to the generality of the provisions of the Civil Code,there is a logical contradiction between the Civil Code and the Management Measures for Special Maintenance Funds for Residential Buildings in terms of understanding and jurisprudence,and the judicial interpretation of the Civil Code should focus on resolving this contradiction so as to smooth the use of maintenance funds.In addition to the special residential maintenance fund,it can also increase the gains of the maintenance fund,take the building damage insurance,collect temporary repair fees and use other income in the residential community as the source of repair fees for the residential community.In addition,the repair of the common part may produce the conflict of interest between the owners,so this paper also puts forward the corresponding legislative scheme,that is,the proprietary parts of others may be used to a reasonable extent when the repair of the common parts has only a short-term and repairable effect on the proprietary parts.If the owner of the exclusive part refuses to use the exclusive part within a reasonable range due to the maintenance of the common part by the manager without justified reasons,Joint partial owner can appeal to the court to exclude the nuisance and use the exclusive part.Where the maintenance of the common part has a serious impact on the proprietary part,the owner of the proprietary part may refuse the request for the use of the proprietary part and may request the restoration of the completed repair and improvement project.