Whether the owners' committee has the qualification of civil litigation subject (2

Hello! The owners' committee is qualified as the subject of civil litigation. The legal basis is as follows:

(1), Article 75 of the Property Law explains the establishment of the owners' assembly and the owners' committee: "The owners' assembly is the owner's autonomous organization and the management organization of the buildings and their ancillary facilities within the building area, which can exercise the * * * right and the * * * management right on behalf of the owners for the parts other than the proprietary parts. In order to maintain the building area, the owners in the residential area are restricted from exercising the ownership of the proprietary parts.

(2) Article 83 of the Property Law stipulates that the owners' committee and the owners' assembly have the right to require the perpetrator to stop the infringement, remove the danger, remove the obstruction and compensate for the loss in accordance with laws, regulations and management regulations for any act that damages the legitimate rights and interests of others by dumping garbage, discharging pollutants or noise at will. All these legal provisions show that the owners' committee has the qualification of litigation subject. "

(3) Article 35 of the Guidelines of Owners' Committee (J.F.J. [2009] No.274):

The owners' committee shall perform the following duties:

(1), implement the decisions and resolutions of the owners' meeting;

(2) Convene a meeting of the owners' meeting and report on the implementation of property management;

③ Sign a realty service contract with the realty service enterprise selected by the owners' congress;

Pet-name ruby other duties entrusted by the owners' meeting.

(4) Article 10 of the Property Management Regulations stipulates that the owners in the same property management area shall, under the guidance of the real estate administrative department of the district or county people's government where the property is located, set up the owners' meeting and elect the owners' committee.

(5) Article 16 of the Property Management Regulations stipulates that the owners' committee shall, within 30 days from the date of election, file with the real estate administrative department of the district or county people's government where the property is located.

(6), "Property Management Regulations" Article 11 the responsibilities of the owners' meeting:

(1), formulate and modify the owners' convention and the rules of procedure of the owners' congress;

(2) to elect and replace members of the owners' committee and supervise the work of the owners' committee;

(3) Selecting and dismissing the property management company;

(4) decide on the overall plan for the use of special maintenance funds and supervise the implementation;

⑤. Formulate and modify the rules and regulations on the use of property parts and public facilities and equipment, and maintain public order and environmental sanitation in the property management area;

⑥ Other duties related to property management as stipulated by laws, regulations or rules of procedure of the owners' congress.

(7) Article 13 of the Property Management Regulations: "Duties entrusted by the owners' meeting. "

(8) Article 15 of the Property Management Regulations: The property owners' committee is the executive body of the owners' congress and performs the following duties;

(1), convene a meeting of the owners' meeting and report on the implementation of property management;

(two) on behalf of the owners and property management companies selected by the owners' congress to sign a property service contract;

(There is a legal relationship in which both parties bear legal responsibilities. )

(3), timely understand the opinions and suggestions of the owners to the users of the property, supervise and assist the property management enterprises to perform the property service contract;

④ Supervise the implementation of the owners' convention;

⑤ Other duties assigned by the owners' meeting.

(9) Article 16 of the Property Management Regulations stipulates that the owners' committee shall, within 30 days from the date of election, file with the real estate administrative department of the district or county people's government where the property is located.

(10) Article 29 of the Regulations on Property Management: "When the preliminary property service contract is terminated, the property management enterprise shall hand over the information (of property management) to the owners' committee.

(1 1), Property Management Regulations Article 35 Property management service contract: The owners' committee shall sign a property management contract with the property management enterprise selected by the owners' meeting. (bear legal responsibility)

(12) Article 88 of the Regulations on Property Management in Shandong Province: "In case of disputes over property management ... the owners' committee ... may bring a lawsuit to the people's court.

(13) In the Regulations of Shanghai Municipality on Residential Property Management, the owners' committee is the organization that manages the property on behalf of all the owners in the property management area, and it is the executive body of the owners' meeting. From the scope of responsibilities, they have the right to sign property service contracts with property management companies selected by the owners' congress on behalf of the owners and perform other duties entrusted by the owners' congress. Therefore, entrusting the owners' committee to represent the owners in specific fields and engage in certain activities in its own name does not violate the provisions of relevant laws and regulations.

Moreover, the owners' committee represents all the owners in suing and responding to the lawsuit, which is also conducive to the people's court to hear the group and contradictory cases that are easy to intensify. Therefore, in administrative cases involving planning permission, if the owners of neighboring communities think that planning permission and other related administrative actions infringe upon the legitimate rights and interests of all owners of the community, the owners' committee may, with the authorization of the owners' assembly, file an administrative lawsuit as the plaintiff. However, when reviewing the prosecution materials of the owners' committee and deciding whether to file a case for acceptance, the following issues should be strictly examined:

(1), convene the community owners' meeting according to law;

(2) Submitting the resolutions of the owners' meeting passed by more than two thirds of the voting rights held by all owners in the property management area;

(3) There is a clear resolution on how to bear the litigation costs in the resolution of the owners' meeting. If the owners' committee fails to submit the above-mentioned relevant materials when suing, the people's court shall inform it to submit them within a time limit. If it is not submitted within the time limit, it shall be deemed that the subject of litigation is unqualified and will not be accepted.

(14) Article 40 Disputes arising from property management activities in Shenyang Property Management Regulations can be settled through consultation. If mediation fails, the parties may apply for arbitration or bring a lawsuit to the people's court according to law.

(15) Article 49 of the Qingdao Property Management Regulations stipulates that if there is a dispute between the owners' committee and the management enterprise due to the performance of the property management employment contract, they may apply for arbitration or bring a lawsuit to the people's court according to law.

(16) The Regulations on Property Management in Zhejiang Province stipulates that the owners' committee may bring a lawsuit in the name of the industry committee upon the decision of the owners' meeting in order to safeguard the equal rights and interests of the owners in the property management area. This is also the first time that Zhejiang has established the qualification of the owner's Committee as the subject of litigation.

(17) "Regulations on Property Management in Zhejiang Province" is the first time to make such a provision in local laws and regulations of various provinces and cities in China to further improve the status of owners' committees. In order to safeguard the rights and interests of owners in the property management area, the owners' committee may bring a lawsuit in its own name upon the decision of the owners' meeting.

(18) Article 17 of the Regulations on Property Management in Zhejiang Province stipulates that the owners' committee may bring a lawsuit in its own name upon the decision of the owners' meeting in order to safeguard the equal rights and interests of the owners in the property management area.

Interpretation: In the process of formulating the Regulations on Property Management in Zhejiang Province, there is a high demand for clarifying the status of the owners' committee as the subject of litigation. After research, the legislature believes that before the national laws and judicial interpretations are unified, local laws and regulations clarify the qualifications of the owners' committee as the subject of litigation, which conforms to the spirit of relevant laws and regulations, reflects the needs of practice, and is conducive to safeguarding the rights and interests of owners. To this end, the "Regulations" made the above provisions.

This fully shows that the owners' committee was established under the guidance of the administrative department and in accordance with legal procedures, and it was filed by the administrative department and obtained legal status.

(19) The Opinions of Beijing Higher People's Court on the Trial of Property Management Disputes (Trial) stipulates that the owners' committee can bring a lawsuit as the plaintiff. If the owners' committee brings a lawsuit or participates in a lawsuit as a defendant, it shall convene a meeting of owners or owners' representatives. Where litigation is involved, written materials for voting consent shall also be submitted to the court. ：

(20) The Guiding Opinions of Chongqing Higher People's Court on Confirming the Qualification of Owners' Committee as a Party to a Property Management Dispute stipulates that a legally established owners' Committee can be used as the original defendant. The owners' committee may exercise the litigation right to safeguard the public interests of the owners in the property management activities in its own name, and the litigation risks and consequences shall be borne by the owners' committee and all owners. If it is determined that the owners' committee must perform its duties, it shall be borne by the owners' committee; Involving property payment responsibility, borne by all owners.

(2 1), Chongqing Higher People's Court's Guiding Opinions on Confirming the Qualification of Owners' Committee as a Litigant in Property Management Disputes, clearly stipulates that the Owners' Committee can be the original defendant, and determines the qualification of Owners' Committee as a litigant for the first time.

(22) The Shanghai Higher People's Court issued the Opinions on the Trial of Doubts in Property Management Disputes, which stipulates that in property management cases, the owners' committee has the right to bring a lawsuit as a plaintiff for any matter involving the public interests of all owners. According to this opinion, for any property management dispute involving the interests of all owners, the owners' committee has the qualification of litigation subject, but only as a plaintiff.

(23) Article 7 of Opinions on Trial of Property Management Disputes issued by Beijing Higher People's Court stipulates that the owners' committee may participate in the litigation as a plaintiff in the following circumstances:

(1), the property management enterprise violates the contract and damages the owner's rights and interests;

(two) the owners' congress decided to terminate the property service contract in advance, and the property management enterprise refused to quit;

(three) when the realty service contract is terminated, the realty management enterprise refuses to hand over the realty management house and the information stipulated in the first paragraph of Article 29 of the Property Management Regulations to the owners' committee;

(4) Other behaviors that damage the rights and interests of all owners. According to this regulation, the owners' committee can only sue as a plaintiff, and the defendants are mainly property management enterprises.

(24) The Guangdong Higher People's Court asked whether the owners' committee has the qualification as the subject of civil litigation.

Shenzhen Intermediate People's Court:

Your request for instructions on whether the owners' committee has the qualification of civil litigation subject has been studied by the judicial committee of our hospital, and the reply is as follows:

According to the spirit of the Supreme People's Court (2002) Minli Zi No.46 "Reply on whether the owners' committee of Jinhu New Village has the qualification as the subject of civil litigation", the owners' committee registered by the real estate administrative department has disputes caused by the failure of the real estate development unit to hand over the planning drawings of residential areas and other materials to the owners' committee, and the failure to provide supporting public facilities, special expenses for public facilities, public maintenance expenses, property management houses and commercial houses.

(25), the Supreme People's Court's "Several Provisions on Applicable Legal Issues in the Trial of Property Management Disputes" "Article 10: An effective judgment is binding on all owners. Its litigation interests belong to all owners "(Author: owners-owners' assembly-owners' committee exercises rights on behalf of all owners).

(26), the Supreme People's Court's "Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Property Service Disputes"

Article 2: "If the owners' committee or the owners request to confirm that the contract or the relevant provisions of the contract are invalid, the people's court shall support it".

Article 8 "After the owners' congress decides to dismiss the realty service enterprise according to the procedure stipulated in Article 76 of the Property Law, if the owners' committee requests to terminate the realty service contract, the people's court shall support it";

Article 10 "If the owners' committee requests the realty service enterprise to withdraw from the realty service area after the termination of the rights and obligations of the realty service contract and hand over the realty service premises and related facilities, as well as the relevant materials required for realty service and the special maintenance funds entrusted by it, the people's court shall support it".

(27) the Supreme People's Court pointed out in his reply to the Higher People's Court of Anhui Province on whether the owners' committee of Jinhu New Village has the qualification of civil litigation subject, "If the owners' committee of Jinhu New Village meets the conditions of' other organizations' and the real estate development unit fails to hand over the planning drawings of residential areas and other materials to the owners' committee, it can do so in its own name without providing supporting public facilities, special expenses for public facilities, maintenance expenses for public parts, houses for property management and commercial houses. According to this reply, the owners' committee can be the plaintiff in the property dispute between the owners and the real estate development company.

(28) Article 49 of the Civil Procedure Law: Citizens, legal persons and other organizations may be parties to a civil lawsuit. (Other organizations are sued by their responsible persons)

(29) the Supreme People's Court (2002) Min No.46: "According to Article 49 of the Civil Procedure Law, Article 40 of the Supreme People's Court's Opinions on Several Issues Concerning the Application of the Civil Procedure Law stipulates that other organizations stipulated in Article 49 of the Civil Procedure Law refer to organizations established according to law (other organizations registered according to law and approved to be qualified), which have certain organizations and property, but do not have legal person status."

"The owners' committee of Jinhu New Village meets the conditions of other organizations and can bring a lawsuit in its own name" (the owners' committee meets the conditions of "other organizations" in Articles 49 and 40 of the Civil Procedure Law and can bring a civil lawsuit in its own name);

(a), the owners' committee has a certain organization:

(1), the owners' committee is elected by the owners' congress;

(2), members are generally held by the owner;

③ The director and deputy director of the owners' committee are elected among the members of the owners' committee;

④ The owners' committee operates according to the articles of association of the owners' committee;

(5) The owners' committee has a sound organization and perfect articles of association, and handles all kinds of affairs in accordance with the provisions of the articles of association.

(2) The owners' committee owns certain property:

According to the provisions of the Civil Procedure Law and relevant judicial interpretations, the requirements of other organizations are "certain property" rather than "independent property".

(1) Since the owners' committee can supervise and manage the * * * parts, * * facilities and equipment, property management office buildings and business buildings of the property and the income therefrom, the owners' committee will charge a certain fee on behalf of all the owners.

(2), for residential * * * parts, * * * facilities and maintenance funds,

(3), in addition, the owners' committee office activities.

(30) the Supreme People's Court (2005) Minli Dazzi No.8: Reply to the request for instructions on whether the owners' committee of Chunyu Garden has the qualification of litigation subject: "The owners' committee is the executive body of the owners' meeting, and carries out civil activities on behalf of the owners according to the authorization of the owners' meeting, and the legal consequences shall be borne by all owners; When there is a civil dispute between the owners' committee and others, the owners' committee may participate in the litigation as a defendant (party). "

The second part of the reply: "the Supreme People's Court believes that the owners' committee, as the executive body of the owners' congress, has the function of representing all the owners externally and carrying out relevant acts of property management internally. The legal effect of its behavior endows the owners' committee with the status of a party, which can achieve the effect of clarifying the subject of responsibility, simplifying the order and reducing the litigation cost. Therefore, the high court tends to recognize the status of the parties to the owners' Committee.

(Author: Both the plaintiff and the defendant are litigants, either the defendant or the plaintiff)

(3 1) The Trial Opinions on the Litigation Rights of Owners' Committees issued by the First People's Court of the Supreme People's Court stipulates that a legally established owners' committee, within the scope of its duties and with the authorization of the owners' congress, has the right to bring a civil lawsuit with the property company as the defendant to the people's court on matters related to property management and involving the interests of all owners. ..... According to the trial opinion, the owners' committee can only sue as the plaintiff, and its prosecution can only be directed at the property management company.

(32) Su Zelin, vice president of the Supreme People's Court, also made the same statement in Several Issues on the Professionalization of Filing Trial and Zhengzhou Symposium on the Practice of Filing Trial: "The executive body of the owners' congress (the owners' committee) should recognize the qualification of the owners' committee as the subject of litigation from the perspective of facilitating litigation"-the owners' committee should be authorized by the owners' congress to file a lawsuit and have the qualification of the subject of litigation.

(33) The trial opinion put forward by the Supreme Court in the book Frontier of Civil Trial in China: "The owners' committee established according to law, within the scope of its duties and authorized by the owners' congress, can (can) bring a lawsuit to the people's court on matters related to property management and involving the interests of all owners, taking the property company as the defendant;

(34), the owners' meeting officially confirmed the entity status: Beijing Morning Post 201/06/17) The legal status of the owners' meeting has been established, and it will be able to exercise property management rights and undertake obligations as an independent civil subject. The owners' meeting can be the plaintiff or the defendant.

(35) Interpretation of the Supreme People's Court on Several Issues Concerning the Trial of Disputes over Differentiated Ownership of Buildings (2009/7).

Article 14: "If the construction unit or other actors occupy or dispose of the owner's part without authorization, change the use function or conduct business activities, and the obligee requests to remove the obstruction, restore the original state, confirm that the punishment is invalid or compensate for the losses, the people's court shall support it. (Author: According to the Property Management Regulations, the Property Law and Article 18 of this judicial interpretation, the owners' committee is a part of the manager and obligee. Moreover, Article 18 of the Judicial Interpretation of the Supreme Law (July 2009) stipulates that disputes involving the ownership of property rights shall be based on laws and administrative regulations).

In the business activities specified in the preceding paragraph, the people's court shall support the obligee's request that the price after deducting reasonable expenses be used to supplement special maintenance funds or other purposes decided by the owner. The actor bears the burden of proof for the cost expenditure and its rationality. .

Article 18 The people's court shall, when trying a case of condominium ownership of buildings, take laws and administrative regulations as the basis if it involves disputes over ownership of property rights.

(36) At the 23rd meeting of the Tenth National People's Congress, the draft property law was considered, which showed that there was no provision on whether the owners' committee could become the subject of litigation. The right to bring a lawsuit or apply for arbitration to the owners' congress or the owners' committee shall be temporarily suspended appropriately; Disputes that infringe upon the rights and interests of owners may be litigated by selecting representatives according to the provisions of the Civil Procedure Law.

(Author: temporarily not to make provisions, does not mean negative. Who will organize the representative election, or the owners' committee will play a leading role, because the property management regulations and the property law give the owners' committee the right to convene the owners' meeting, elect representatives and safeguard the owners' property rights. )

(37) Experts and scholars recognize the qualification of the industry committee as the subject of litigation: In case litigation, some courts hold that the owners' committee belongs to "other organizations" as stipulated in Article 49 of the Civil Procedure Law and has the qualification of the subject of civil litigation. As the plaintiff, the owners' committee conforms to the provisions of "other organizations" in the Civil Procedure Law:

(38) Experts and scholars recognize the qualification of the owners' committee as the litigation representative of the owners' congress, and its qualification as the litigation subject should be confirmed. On the premise that the owners' committee is explicitly authorized by the owners or owners' general assembly, the owners' committee accepts the entrustment of the owners or owners' general assembly, and the court will accept the lawsuit as the owner's representative to claim rights. Because to some extent, without the right of appeal, there is no right without relief. Denying the right of appeal of the industry Committee is also inconsistent with the purpose of coordinating and solving community conflicts through these community autonomous organizations.

(39), experts and scholars believe that there will be a large number of disputes about the interests of the owners' committee, and in judicial practice, the advantages of recognizing the qualifications of the owners' committee as the subject of litigation outweigh the disadvantages.

(40) Experts and scholars believe that it is more convenient to determine the qualification of the litigation subject of the owners' committee than the representative litigation system. In the representative litigation, the plaintiff can give up his rights alone, but in the property management litigation with the same rights and interests, the owners often can't give up their rights alone and recognize the subject qualification of the owners' committee, which is generally applicable to all owners and has greater advantages than the representative litigation system.

(4 1), experts and scholars believe that the qualification of the owners' committee as the subject of litigation provides a more convenient way for owners to safeguard the same rights and interests. Although the representative litigation system stipulated in the current civil procedure law can partially solve the disputes that the owners' rights and interests have been infringed, the owners' committee, as the subject of litigation, will be more convenient in litigation.

(42) Experts and scholars believe that it is more operational to recognize the qualification of the owners' committee as the subject of litigation. As the main body of litigation, the owners' committee has relatively simple conditions to start the litigation procedure, and at the same time, the litigation request will be effectively unified.