Who said that "the legal status of the owners' congress and the industry Committee is not clear"

Keywords: owners' committee; Owners' meeting; Legal status (the legal status of the owners' congress and the industry Committee is clear, as follows:)

With the continuous expansion of the degree of privatization of housing property rights and the continuous emergence of new residential quarters, owners' self-governing organizations came into being. Owners' autonomous organization can be said to be a new type of social organization formed by the owners to facilitate the management of property affairs, maintain the order of life and coordinate interests, and to conclude management regulations and set up corresponding management institutions through consultation. Owners' autonomous organizations in China mainly include owners' congress and owners' committee. In recent years, although the proportion of communities that set up owners' self-governing organizations in cities across the country is not large, owners' self-governing organizations do exist, and the number is still rising. As a new type of organization, what is the legal nature of the owners' autonomous organization, that is, the owners' congress or the owners' committee? What is the relationship between the owners' meeting and the owners' committee? Is the owner's autonomous organization a civil subject? What kind of civil subject is it? Does it have the ability of a political party? In recent years, a series of problems have become the focus of extensive disputes in legal theory and judicial practice. Based on these problems, the author uses three parts to analyze the legal status of owners' autonomous organizations in China.

First, the owners' congress is a real self-governing organization of owners in China.

In our country, few people clearly put forward the concept of owner's autonomous organization. On June 8, 2003, the State Council promulgated the Regulations on Property Management, which defined the orientation and nature of the owners' autonomous organizations for the first time. Article 8 of the latest Property Management Regulations (hereinafter referred to as the Regulations) stipulates that all owners in the property management area form the owners' meeting, which represents and safeguards the legitimate rights and interests of all owners in the property management activities in this area; Article 10 stipulates the establishment method of the owners' meeting; Article 1 1 entrusts the owners' meeting with important responsibilities, including selecting and dismissing property management enterprises, and electing and replacing members of the owners' committee. Article 15 of the Regulations further stipulates that the owners' committee is the executive body of the owners' congress. From the above provisions, we can clearly draw that the legal status and related rights of the owners' committee come from the owners and owners' congress. Without the authorization of the owners and the owners' congress, the owners' committee cannot carry out its work. This is a basic premise to position the legal status of the owners' committee. However, it is stipulated in the regulations that the owners' committee, as the executive body, should register with the real estate management authority, and it has been given a lot of authority, and can even sign property service contracts with property service enterprises. Due to the seemingly contradictory provisions of the regulations, many people have made mistakes in understanding. They began to emphasize that the owners' committee should be an independent organization, and then discussed that the owners' committee is an unincorporated group with independent will, which belongs to the category of "other organizations" as stipulated in Article 49 of China's Civil Procedure Law and can obtain the status of an independent party. In real life, although the owners' meeting stipulated the procedure of democratic deliberation, some owners' committees actually went beyond the owners' meeting and imposed it on all owners with the will of a few people.

After careful study of the Property Management Regulations, it is not difficult to find that (1) stipulates that the owners' committee is only the permanent executive body of the owners' congress, not the decision-making body, and the owners' committee has no right to make decisions on matters involving the interests of owners. (2) It is the owners' assembly, not the owners' committee, that can enjoy the right to hire and dismiss the property company, the right to formulate the owners' convention and the right to amend it; (3) The owners' committee can only be responsible for the implementation of specific matters according to the decision of the owners' meeting and select suitable property management enterprises on behalf of all owners; (4) When it comes to important decision-making issues such as the use of public management and the use of maintenance funds, the owners' committee must convene a general meeting of owners, which can only be exercised after the majority of owners have formed their will, instead of exercising the decision-making power instead of replacing the general meeting of owners. However, the author believes that the owners' congress can indeed be called the owners' autonomous organization in China.

Two, the owners' congress as an unincorporated group should be a civil subject.

Judging from the structure of the owners' autonomous organization in China, the owners' congress is not a loose autonomous organization, but very similar to a partnership organization as an unincorporated group. Compared with the partnership organization, there are the following similarities: (1) The partnership agreement is the same as the owners' convention. Owners' convention is a civil act between owners, which embodies the principle of owner autonomy and self-management. (2) Property ownership belongs to all partners or owners. Partnership organizations and owners' meetings have no property of their own. The owners' congress has no ownership of public property such as special maintenance funds, facilities and equipment, and residential property management houses delivered by the owners. (3) neither the partnership organization nor the owners' meeting can bear the responsibility independently. (4) The transaction execution method is the same. Among large and medium-sized owners, owners have different interests and requirements. It is obviously unrealistic for owners to jointly manage residential property affairs. It is necessary to elect the owners' committee to carry out specific affairs, and the owners' committee has become the executive body of the owners' meeting. Then, the owners' congress, as a similar and partnership organization, will also be questioned whether it is a civil subject under the dual structure of traditional civil law. The author thinks it is necessary to consider whether the owners' congress has the qualification of civil subject at a higher level, that is, to get rid of the misunderstanding of the traditional standard of civil subject and put forward new specific conditions for judging civil subject. These problems are clearly demonstrated, and the civil subject status of the owners' congress will be solved.

1. The misunderstanding of civil subject standard and the establishment of new civil subject standard.

In civil law, subject qualification is the premise, and only people with subject qualification can become the subject of rights or legal relations. The German Civil Code promulgated since 1890 has established a dual structure with natural persons and legal persons as civil subjects, and abstracted the system of rights and capacity as a standard to judge whether a social subject has the qualification of civil subjects. Since then, most civil law countries have followed the German legislative model, and gradually formed the concept that capacity for rights is equal to civil subject or personality. China's civil law theory basically follows the dual structure theory of the German Civil Code for a long time, and has always insisted that a social subject (especially an association composed of natural persons) must have two elements of civil capacity and civil capacity (including civil liability capacity) to become a civil subject. This theory has become the main obstacle to identify the civil subject status of a group that has the same essence as a group legal person but cannot obtain the qualification of a person, that is, an unincorporated group.

As a kind of social existence, especially with the development of social economy and the needs of people's life in China, the legal status of unincorporated organizations has quickly attracted the attention of Chinese scholars. At the end of 1990s, many scholars also realized that there were some deviations in the previous standards for the determination of civil subjects, and the fluctuations in theoretical circles were also reflected in legislation. Many specialized civil laws began to affirm certain qualifications of unincorporated organizations to some extent. We begin to realize that (1) capacity for rights is not equal to civil subject. Capacity for rights is only the abstraction of the same characteristics of civil subjects, and it is only a legislative skill, not the essence of civil subjects. The so-called organization without capacity for rights cannot become a civil subject, not because it has no capacity for rights, but precisely because it cannot become a civil subject. (2) Capacity for conduct (including capacity for responsibility) is not a qualification requirement of civil subjects. Capacity for action is only the way to realize the qualification of subject, not all civil subjects need capacity for action, and the way of taking responsibility of a group (that is, whether it can take responsibility in opposition) is not necessarily related to enjoying its qualification of civil subject. (3) Capacity for rights cannot refer to personality. The significance of the concept of capacity for civil conduct lies in revealing the differences of legal subjects, and specifically portraying the state and characteristics of the existence and activities of legal subjects. Personality is the prerequisite for the real subject to participate in legal relations; Capacity for civil conduct is the possibility and scope for legal subjects to engage in civil activities. Personality is the theoretical abstraction of civil capacity; Capacity for civil conduct is the relative concretization of personality and legal existence. Scholars have put forward new standards for the identification of civil subjects, which are representative:

First, the civil subject should: have property autonomy, not the owner of the property, but accept and dispose of the property in its own name; Have a certain group; The joint liability of its members is not enough to deny its civil subject status. Secondly, the standard of civil subject should be: recognized by law and able to carry out legal acts in its own name; Can have legal interests; It can be distinguished from other disciplines. Third, as long as individuals or organizations can become property carriers, the mission of completing transactions can be civil subjects. Fourth, the civil subject should: be able to exist or carry out civil activities in an independent name in the social and economic life at that time, and have independent will; Recognized by the law at that time. Based on the above point of view, the author thinks that an organization should have three conditions to become a civil subject: first, it should have its own independent name and will; Second, you can own your own disposable property (no property ownership, but you can control and dispose of it in your own name within a certain limit); Third, there must be legal recognition at that time.

2. The owners' congress is the civil subject.

From this issue back to the discussion of the legal status of the owners' congress, to analyze whether the owners' congress can have the above three elements to become a civil subject.

(1) The owners' assembly has independent will and can exist in its own name and conduct civil activities. We know that if a group is just a simple combination of some people, it is not enough to form an entity independent of its members. "Only when each member's will and will form * * *, and * * * and will organically form a group will", when "the independent nature of a group, although all its members have changed, does not affect its independent existence" (in Urbian, a Roman jurist), can it be considered as a group in the real sense. From this point of view, all the owners hold a meeting of the owners' congress in accordance with the provisions of the owners' convention to discuss and vote on important matters in the community, and then form a * * * consensus, which is not the simple sum of the will of all the owners, nor does it replace the will of each owner, but the will of an independent group independent of the owners. And in the "Articles of Association of Owners' Congress", it is also stipulated that the owners' congress can engrave and use seals in accordance with the regulations. However, compared with the owners' committee, it is obvious that the owners' committee can only carry out activities within the scope authorized by the owners' congress. The personnel arrangement of the owners' committee shall be decided by the owners' congress. The use, circulation, ownership change and disposal of facilities in the community must also be specially authorized by the owners' meeting. Even if you sign a property service contract with foreign countries, you can't freely choose the contract counterpart. Therefore, the owners' committee is only the executive body of the owners' congress and has no independent will. The author thinks that the owners' committee can only carry out civil activities in the name of the owners' congress.

(2) The owners' congress has its own disposable property and independent civil interests within a certain range. Although the owners' congress has no ownership of the special maintenance funds delivered by the owners, some public properties, such as facilities and equipment, residential property management houses, etc. , with certain supervision and management rights and certain control and disposal rights within the scope of authorization. These properties dominated by the owners' congress exist independently of the personal property of each owner, and generally have nothing to do with the personal property of the owner. The new "Property Law" also stipulates that the owners' congress may, within the scope of its functions and powers, require the actor to stop the infringement, remove the danger, remove the obstruction and compensate for the losses. This also proves that the owners' congress can distinguish their own civil interests from those of others and can use and dispose of them independently.

(3) The owners' meeting is established and operated according to the conditions specified in the law, which is recognized by the laws of our country. The confirmation of law reflects the intervention of the ruling class in real economic life and is a necessary condition for individuals or organizations to become civil subjects. First of all, the property management regulations, as an administrative regulation, stipulate the owners' meeting, and clearly stipulate the way of establishing the owners' meeting, the responsibilities of the owners' meeting, the way of convening the owners' meeting, and the types of meetings. The latest Property Law also stipulates that an owner may set up an owners' meeting (Article 75), stipulating that the decisions of the owners' meeting are binding on the owner (Article 78), and the owners' meeting has the right to demand the infringer to bear civil liability (Article 83). Although these laws do not explicitly require the owners' congress to register with the competent authorities to determine its status, these provisions of the law have actually recognized the civil subject status of the owners' congress. Moreover, just because an organization has no corresponding administrative registration, it can't blindly deny its subject qualification and behavior effect in private law.

Three, the owners' congress should have the qualification of civil litigation.

Article 49 of China's Civil Procedure Law clearly stipulates that citizens and organizations other than legal persons can also be parties to civil litigation. According to Article 40 of the Supreme People's Court's Opinions on Several Issues Concerning the Application of Civil Procedure (hereinafter referred to as Opinions), other organizations in Article 49 of the Civil Procedure Law refer to organizations that are established according to law, have certain organizational structures and property, and do not have legal personality. Some scholars believe that the owners' assembly not only does not necessarily own independent property, but the legal subject's capacity for rights, conduct and responsibility can be separated, which meets the requirements of "other organizations" in the Civil Litigation Opinions, and the litigation results of owners' organizations in property management are often not based on property, so the owners' assembly should be given the qualification of litigation subject. This view is purely for the convenience of litigation and requires relaxing the conditions and scope of litigation within a certain limit. The author thinks that the "certain property" stipulated in Article 40 of Civil Procedure Opinions does not explicitly require independent ownership, as long as other organizations can control a certain range of property and funds relatively independently. We can't understand the problems related to property rights too narrowly. At present, the limited separation of ownership and possession, use right and disposal right has actually become the trend of social and economic development. The owners' congress may supervise and manage the special maintenance funds delivered by the owners, the facilities and equipment owned by the owners, residential property management houses and other public property, and dispose of them within the scope of authorization. The owners' congress can be classified as "other organizations" stipulated by law and has the capacity of the parties. Congress has the qualification of litigation subject. At the same time, the owners' committee, as the executive body, can act as the litigation representative of the owners' congress and conduct litigation in the name of the owners' congress, which can make the legal relationship between the owners, the owners' congress and the owners' committee more clear.

Four. Conception of legal person model of owner's autonomous organization

Through the above discussion, the author draws the following conclusions: (1) As a real owner's self-governing organization, the owners' assembly has the qualification of civil subject and the capacity of the parties; (2) The owners' committee is only its permanent executive body, representing the owners' congress, and can only carry out corresponding civil activities and participate in civil litigation in the name of the owners' congress.

However, in today's mode, we can't avoid the confusion of the dual identity of the owners' congress: the name of the owners' congress refers not only to the civil subject who can act in his own name, but also to the authority that makes decisions through litigation procedures. As a group, it is inevitable that people will fall into the misunderstanding that the owners' congress is their own authority and its authority is the group itself, which will cause inconvenience and confusion in real life. Therefore, the author thinks that the owners' congress should be replaced by another title, such as owners' association, to distinguish it from its internal functional institutions.

Throughout other countries and regions, the regulations on owners' autonomous organizations generally give legal person status and provide a corporate governance structure similar to a company. Some scholars have discussed the trend and necessity of corporatization of owners' groups, and think that it adapts to the efficiency of modern management and the convenience of modern life: (1) Management groups can act as legal acts in their own names, and it is extremely convenient to obtain rights and conclude contracts. (2) Make the management group itself the attribution point of rights and obligations, thus increasing the convenience and stability of the transaction counterpart. (3) It is more convenient to rebuild or even overhaul the buildings with differentiated ownership. (4) It is more convenient to pay taxes on houses and land. (5) It is more convenient for foreign litigation based on the use and management of buildings with differentiated ownership. The author believes that in the future, China's legislation can reconstruct the owners' autonomous organizations in this way: establish the legal person status of the owners' autonomous organizations, and their corporate bodies can be called owners' legal persons (or owners' associations). , and the owners' legal person (or owners' association) has independent civil subject and litigation subject qualification; The owners' meeting is similar to the shareholders' meeting in the company, but it is the authority of the owners' legal person. All owners exercise their membership rights through the deliberation and decision-making of the owners' meeting. The owners' committee is similar to the company's board of directors. As a permanent executive body of the owner's legal person, it handles daily affairs, conducts civil acts in the name of the owner's legal person and participates in litigation as its representative. Of course, such a corporate model is only an idea, and whether it is suitable for the specific situation of China needs to be further tested and improved in practice.