| Article 274 of the Civil Code of the People’s Republic of China stipulates that the common facilities within the building zone are jointly owned by the owners,but in judicial practice,there are three types of subjects of ownership of telecommunications facilities in the community,the owners,developers,and telecommunications companies.Judicial decisions held opposing views on the validity of ownership contracts,reflecting a divergence in interpretations and applications of laws and regulations.In the legal system of China,the terms "telecommunications" and "communications" are used mixedly,and the Civil Code of PRC does not specify the meaning of "telecommunications facility" and "common facility",but infrastructure,common facilities and public facilities all include telecommunications facilities.Whether a telecommunications facility is movable or immovable,and the social attributes it carries are all considerations for the determination of ownership.Accordingly,we rethink public and private law norms concerning ownership and find the following questions: it is difficult to determine the detailed scope of the common parts and common facilities of the owners according to Article 274 of the Civil Code of PRC and its judicial interpretations;the ownership term in construction contracts should be determined in conjunction with the facts of each case which cannot be invalid only because violating the "commonly owned by the owners" provision.It is not easy to determine the scope and ownership of telecommunication facilities outside the building by the terms of housing contracts;common ownership of the owners can not be judged by the provisions of "transferring with the house" and "handing over together" of telecommunication facilities;due to the ambiguous nature and formal examination of the registration of housing and common facilities,there is no guarantee that the registration is consistent with the actual owner.The approach to the preceding problem should be oriented towards both legal applications and settings.In the application of legal norms,it should be clarified that Article 274 of the Civil Code of PRC is not a mandatory rule on effectiveness,and the exceptions to the rule that common facilities within a building zone should include those owned by other persons,and non-owner subjects are allowed to acquire ownership by contract when their ownership of facilities makes the interests of all sides more balanced;Based on the type of damage to interests,a model of effectiveness judgment is established to help unify the trial of similar cases.Regarding the setting of legal norms,the definition of common parts should be explicitly defined with a utility criterion incorporated to assure the accuracy of the determination of ownership,then register the owner’s common parts of land independently and set up a special classified registration section for the common facilities within this area to avoid the redundancy of a combined registration with housing. |
