What is the legal status of the owners' committee?

First, the nature of the owners' committee.

Owners' committee is a social organization in the development of urban housing and property management. In the theory of China's Property Management Law, the owners' committee refers to a non-governmental organization which is elected by the owners' congress and composed of owners' representatives under the guidance of the real estate administrative department, represents the interests of owners, supervises the work of property management companies, and enables the majority of owners to fulfill the owners' convention. [1] The owners' committee is the most basic form of owners' participation in democratic management, with the basic function of owners' autonomy and self-discipline. Together with the professional management of property management enterprises, it has become the basic framework of China's property management system.

The owners' committee has the following legal characteristics: (1) It is elected by the owners' congress, and its members must reflect the opinions of the overwhelming majority of all owners. (2) The activities of the owners' committee are limited to the autonomous management of the property. In addition to signing property management contracts, the owners' committee shall not engage in any business or non-business activities unrelated to property management activities. (3) The fundamental task of the owners' committee is to represent and safeguard the legitimate rights and interests of all owners. The owners' committee represents all owners, which means that its actions are responsible for all owners and safeguard their legitimate rights and interests. (4) The owners' committee must go through the registration formalities with the competent department prescribed by law.

According to article 10 of the Property Management Regulations, the owners' committee shall be elected by the owners' assembly at the first meeting of the owners' assembly after its establishment. Article 15 of the Property Management Regulations clearly stipulates that the owners' committee is the executive body of the owners' meeting, and performs five duties, such as convening the owners' meeting, signing contracts with property management companies on behalf of the owners, and supervising the implementation of the owners' convention. Comparing the responsibilities of the owners' committee stipulated in the Property Management Regulations with those stipulated in most local laws before its promulgation, we can see that some important responsibilities entrusted to the owners' committee have been entrusted to the owners' assembly. This change embodies a basic idea of legislators, that is, the owners' group composed of all owners is the highest authority for owners to participate in property management affairs. Although China implements an autonomous management system in which the owners' committee and the owners' assembly coexist, the owners' assembly is the decision-maker and the owners' committee is mainly the executor. As the executive body of the owners' congress, the owners' committee can make decisions on some property management matters within the scope authorized by the owners' congress, but the decision-making power on major property management matters can only be exercised by all owners through the owners' congress. Does this mean that the owners' committee can only be attached to the owners' assembly and has no independent legal status and civil litigation capacity? It is precisely because the provisions of the law in this regard are not specific and clear enough, which leads to theoretical disputes and confusion in practice. Therefore, it is necessary to discuss the legal status of the owners' committee.

Second, the legal status of the owners' committee.

Regarding the legal status of the owners' committee, the theoretical and practical circles have always had different views and practices.

The main viewpoints in the theoretical circle are: (1) The owners' committee is a legal person established according to law, with necessary property and funds, its own name, organization and place, and it can independently bear civil liabilities. [2] (2) The owners' committee becomes a legal organization after being registered by the real estate management department authorized by the government, and its legal status does not exist. The owners' committee authorized by all owners has the right to sue and respond to the lawsuit. [3](3) Although the owners' committee is not clearly defined in the substantive law, it is established according to law, with certain organization and property, and has the "the Supreme People's Court on application"

In my opinion, due to the low level of legislation related to property management, in judicial practice, the understanding and handling of the legal status of owners' committees by local courts may be completely different. In this way, it is not only not conducive to the uniform application of the law, but also brings some difficulties to how to determine the legal status of the owners' Committee. Judging from the provisions on the responsibilities and relationship between the owners' congress and the owners' committee in China's Property Management Regulations, although the owners' committee can independently exercise some rights within the scope of authorization, it is still quite debatable to regard it as a legal person. The owners' committee has no independent property, and even within its "limited" capacity, it cannot bear civil liability independently. In addition, article 16 of the Property Management Regulations stipulates that "the owners' committee shall file with the real estate administrative department of the district or county people's government where the property is located within 30 days from the date of election". The "filing" here obviously cannot be understood as compulsory registration, although even if it is not filed, it will not affect the legitimacy of the establishment of the owners' Committee; However, according to China's laws, only organizations that have been approved or registered will be given subject qualifications by law. Therefore, the owners' committee has no legal form, so it should not have independent legal personality.

Based on the basic provisions of the Property Management Regulations on the relationship between the owners' committee and the owners' assembly, some scholars believe that the owners' committee can only be the executive body of the owners' assembly and should be positioned as an internal organization of the owners' assembly without civil subject qualification and independent civil rights capacity. However, the author believes that the owners' committee should generally be recognized as an independent civil subject, and can engage in civil activities related to property management in its own name within the scope authorized by the owners' congress. The reason is:

1. In practice, many property contracts are signed in the name of the owners' committee, not the owners' meeting. Article 35 of the Property Management Regulations regards the owners' committee as the basic legal status of the parties to the contract, which has also become the best annotation to the civil subject qualification of this kind of "unincorporated organization". [6] Because Article 2 of the People's Republic of China (PRC) Contract Law (hereinafter referred to as the Contract Law) clearly defines the parties to a contract as "natural persons, legal persons and other organizations"; Obviously, the owners' committee is neither a natural person nor a legal person, and can only be included in the ranks of "other organizations". At the same time, in view of the establishment procedures, responsibilities and relevant property provisions of the Property Management Regulations, the owners' committee fully meets the constitutive requirements of an unincorporated organization, and its civil subject qualification should undoubtedly be an unincorporated organization, that is, "other organizations" referred to in Article 49 of the Civil Procedure Law of People's Republic of China (PRC) (hereinafter referred to as the Civil Procedure Law) and Article 40 of the Civil Procedure Opinions.

2. As the objective existence of China's market economy at a certain stage, the owners' committee reflects the objective needs of social real life, and the law should conform to the trend and reflect the necessary response to this social demand. At the same time, it is not only necessary but also of great practical significance to endow the owners' committee with the corresponding civil subject qualification. Because, once the owners' committee itself becomes the ownership point of rights and obligations, it will not only help it acquire corresponding rights and undertake corresponding obligations, increase the convenience and security of the transaction counterpart, but also help to solve related property disputes in time according to law, and reduce the personal litigation burden of the owners and the waste of judicial resources. [7] Otherwise, flatly denying the civil subject qualification of the owners' committee and not allowing it to participate in the relevant property litigation as a party will inevitably lead to complaints and doubts such as "why the owners' committee can represent the owners when signing the relevant contracts, but not in litigation". [8]

On the basis of recognizing the status of the owners' committee as a civil subject, it is logical to analyze its civil subject qualification.

Three, the owners' committee's qualification as the subject of litigation

Does the owners' committee have the qualification of independent litigation subject? In other words, does it have the ability of a political party? Can you conduct various transactions or participate in litigation on behalf of all owners in your own name? Because the relevant laws are not clearly defined, there have been different opinions in practice and theory. The "Regulations on Property Management" has no specific provisions on this issue, which has aroused widespread debate in all walks of life.

In judicial practice, there are three main views on the qualification of the litigation subject of the owners' committee: (1) double negation theory. It is considered that the owners' committee does not have the qualifications of civil subject and litigation subject. (2) The interest defect theory of litigation. In other words, it recognizes the litigation capacity of the owners' committee, but when it comes to property management litigation, it should be authorized by the owners to form a principal-agent relationship to participate in the litigation. (3) Admit the qualification of the owners' committee as the litigation subject and allow it to be the party in the property management-related litigation. [9]

Theoretically, some people try to use the theory of anonymous agency in civil law to analyze the legal relationship between the owners' committee and all owners, so as to solve the problem of the parties' ability of the owners' committee. [10] On the surface, this view is reasonable, but there are also many inevitable problems. First of all, when there is a dispute between anonymous agents, the third party has the right to choose the agent or the principal. If the parties are allowed to choose all the owners as the other party in the lawsuit involving the owners' committee, it will not only be detrimental to the smooth progress of the lawsuit, but also greatly reduce the litigation efficiency, so that the rights and interests of the owners will not be effectively protected for a long time, and at the same time, it will increase the litigation cost and waste judicial resources. Secondly, according to the theory of anonymous agency, if the third party knows that there is an agency relationship between the principal and the trustee when concluding a contract, the contract will directly bind the trustee and the third party. Under normal circumstances, the trustee does not need to bear any contractual responsibilities after the client automatically intervenes. [1 1] Based on this, we can think that it is obvious that the owners' committee represents the interests of all owners, and almost all third parties should know about it. However, according to the theory of anonymous agency, at this time, the contract directly binds the third party and all the owners, and there is no necessary connection with the owners' Committee, so the status of the owners' Committee as a party can not be reflected naturally.

The author thinks that on the basis of admitting that the owners' committee can be regarded as "other organizations", there is a certain theoretical and practical basis for giving it the corresponding qualification as the subject of civil litigation.

1. According to Article 40 of the Opinions on Civil Procedure, other organizations with litigation rights must meet the following conditions: established according to law; Have a certain organizational structure; Have their own property; Not qualified as a legal person. Generally speaking, owners' committees are established according to property management regulations and local laws, and most of them have relatively fixed members and responsibilities. On these two points, the owners' committee meets the conditions of the above-mentioned "other organizations". However, in terms of whether they have their own property, they will make different judgments according to local regulations. We believe that the condition of "having one's own property" does not necessarily require independent ownership, as long as "other organizations" can control property and funds relatively independently. Moreover, with the development of modern social economy, "owning your own property" should be understood as having certain "property rights". Property rights mainly include property rights, creditor's rights and intangible property. Whether the real estate is actually occupied is not the standard to measure whether it has rights and qualifications. Even, as long as the owners' committee can afford the legal fees, the court should start judicial proceedings in time to protect their property rights. Because it is impossible to find out whether the behavior of the owners' committee has been authorized by the owners' congress at the stage of litigation acceptance, the owners' committee should generally be recognized as the subject of litigation. It can be seen that the participation of the owners' committee as a party in relevant civil litigation should meet the basic requirements of the judicial interpretation of the Supreme Court.

2. Capacity for civil rights refers to the qualification of civil subjects to enjoy civil rights and undertake civil obligations according to law. Generally speaking, any subject with civil rights capacity can sue and respond as a party in litigation in his own name, that is, civil rights capacity is consistent with civil litigation rights capacity (also known as party capacity). The ability to have a party is only an abstract qualification. Whether the civil subject can become a party to a specific case must also have the basis of the eligibility of the party, and it can be realized through prosecution and responding to the lawsuit. [12] The capacity for civil rights is consistent with the capacity of the parties, but it is also inconsistent, that is, the capacity of the parties is relatively independent. The most typical example is that according to Article 49 of the Civil Procedure Law and Article 40 of the Opinions on Civil Procedure, it is generally recognized that "other organizations" without legal personality have the capacity of the parties, which is a major breakthrough of the Civil Procedure Law to the Civil Law. [13] Although it cannot bear civil liability independently, it can participate in litigation in its own name. All these provisions show that the capacity of parties, rights, actions and responsibilities of civil subjects are interrelated, but they are relatively independent and can be separated. In theory, this is called the separation of party capacity and civil rights capacity, that is, party capacity exists independently of civil rights capacity, those without civil rights capacity have party capacity, and those without party capacity have civil rights capacity. [14] Therefore, it is impossible to mechanically judge whether a civil subject has the capacity for rights and responsibility. It is quite debatable to categorically deny the qualification of the owner's Committee as the litigation subject and completely ignore the relative independence of the parties' ability.

If a civil subject with the qualification of a party wants to be a party to a specific case realistically, it must also belong to a qualified party. According to the general explanation of the party theory, eligible parties must have the right to file an enforcement lawsuit against the disputed case. [15] The traditional right of litigation execution is based on the management of disputed legal relations, but today's "litigation interest" theory holds that any dispute with rights and obligations as the object of litigation is conducted between two parties with opposing interests in law, and the parties have "litigation interest" in the object of litigation, so the parties are eligible parties in this case. In a narrow sense, "litigation interest" refers to the necessity of using civil litigation for relief when civil rights and interests are violated or civil disputes occur with others. [16] judging from the affairs managed by the owners' committee and its responsibilities, generally speaking, all related property disputes are closely related to their legal interests, and they should be deemed to have "litigation interests". Therefore, the author believes that the owners' committee not only has the status of a party, but also belongs to a qualified party in the related property management litigation.

3. The theory and practice of group litigation provide us with a new perspective to solve the litigation subject of owners' committee. Modern society respects individual rights, and individual rights are often realized through social organizations or groups to which they belong. The behavior of all groups can ultimately be attributed to the behavior of individuals who make up the group. In China, individuals have always been attached to a certain group, and many times their legitimate rights and interests are protected and realized through groups. Therefore, attaching importance to the protection of group rights and giving them the status of subject in civil litigation is an important means to realize individual values and rights. The purpose of establishing group litigation is to safeguard the legitimate rights and interests of group members or their protected persons, simplify litigation procedures, and generally apply to specialized fields. The owners' committee is an autonomous management organization elected by the owners, and it is an unincorporated organization, which just conforms to the characteristics of group litigation and can represent and safeguard the interests of all owners in litigation, so as to better realize the rights relief of owners, especially when the interests of owners are damaged, it is obviously difficult to realize their rights by relying on the personal strength of owners.

4. In recent years, in the legislative and judicial practice of property management in various places, it is generally recognized that the owners' committee can independently conduct civil litigation activities. For example, the Regulations of Shanghai Municipality on Residential Property Management stipulates that the owners' committee may bring a civil lawsuit to the people's court if it violates the owners' convention and the residential use convention. The Regulations on Property Management of Residential Areas in Shenzhen Special Economic Zone stipulates that if the owners' convention is violated and the safety or interests of others are infringed, the owners' committee may bring a civil lawsuit to the people's court. In addition, some specific operational norms in judicial practice also provide corresponding support for the owners' committee as an independent subject of civil litigation. Beijing Higher People's Court's Opinions on the Trial of Property Management Disputes (Trial) has clarified the issue of the owners' committee as the subject of litigation, but only admitted that the owners' committee can "participate in the litigation as the plaintiff" in some cases, but did not comprehensively standardize the qualifications of the owners' committee as the subject of litigation.

5. the Supreme People's Court's reply to the case also gave a clear opinion on the qualification of the owners' committee as the subject of civil litigation. On August 20th, 2003, the Supreme People's Court confirmed the qualification of Jinhu New Village Owners' Committee as the plaintiff in the reply to the case of Anhui Higher People's Court ((2002) Minli Dazi No.46) on whether Jinhu New Village Owners' Committee has the qualification of civil litigation, and thought that it met the conditions of "other organizations" and could bring a lawsuit in its own name. [17] Later, in the reply to the Anhui Higher People's Court on August 15, 2005 ([2005] Minyi Litzi No.8), the Supreme People's Court clearly recognized the qualification of the owner's committee of Chunyu Garden as the litigation subject, and thought that "the owner's committee is the executive body of the owners' meeting". In case of a civil dispute between the owners' committee and others, it may participate in the proceedings as a defendant. "Although the above reply is only for individual cases, the Supreme People's Court, as the highest judicial organ in China, has an important responsibility to guide and supervise the application of laws by local people's courts at all levels. Therefore, the above reply is undoubtedly of guiding and reference significance to the handling of other cases involving the owners' Committee.

In practice, it is also necessary to make the owners' committee an independent subject of civil litigation. All owners in the property management area must need an authoritative representative organization. After all, the will of the owners' committee is relatively independent and cannot represent the unanimous opinion of all owners. As for the view that the owners' committee is only regarded as an agent and has no independent qualification as a subject of civil litigation, it does not have much practical significance in judicial practice. Because, even if all the owners are listed as litigants, the owners' committee will eventually carry out specific litigation activities, so there is no practical need to make such a distinction. In my opinion, it is of great practical significance to give the owners' committee, a specific organization, an independent civil litigation subject qualification in related property dispute litigation, whether for the actual needs of dispute resolution, from the perspective of litigation efficiency or just from the perspective of saving judicial resources. It has a corresponding legal basis and makes related litigation more operable, which is of great practical significance for solving many property disputes in judicial practice.

Fourthly, the improvement of the legal status of the owners' committee.

To sum up, the author believes that although the owners' committee does not have the qualifications of a legal person, it should be established according to legal procedures and registered by the property management department, and can be an unincorporated organization to engage in corresponding civil activities. As a civil subject, the owners' committee's capacity for civil rights and civil conduct can also be clearly defined in the future civil code and other basic civil laws.

Defining the legal status of the owners' committee clearly in law, the fundamental purpose is to better ensure that it fully and effectively exercises its civil rights and actively acts on the property management affairs of all owners; When an act or fact that infringes on the owners' group occurs, it can actively pursue the civil liability of the injurer as a specific subject through litigation relief to safeguard the legitimate rights and interests of all owners. Therefore, the position of the owners' committee in the litigation related to property management affairs is undoubtedly the key to the smooth realization of the above objectives. Here, we must go beyond the vision of civil substantive law, and at the same time, with the help of the theory of the party system in the civil procedure law, in order to properly solve the qualification problem of the owners' Committee as the subject of civil litigation. Based on the analysis of the current reality, the author tries to put forward the following two ways to solve the qualification problem of the owners' committee in civil litigation:

1. As an unincorporated organization that enjoys independent property rights and can independently bear civil liabilities, the owners' assembly should have independent civil subject qualifications. Therefore, the owners' assembly, as a group composed of all owners, enjoys full capacity for civil rights and full civil subject qualification within the scope of management affairs within the property management area stipulated by law, including selecting and hiring property management enterprises and supervising the property management enterprises to actively perform their contractual obligations. In the civil litigation of disputes over the performance of property management contracts and infringement of property management rights, the owners' congress, based on the complete management right of property management affairs, certainly has litigation interests and can become a qualified party to participate in the litigation. At the same time, the owners' meeting is composed of all owners for the same purpose, but it is impossible to require all owners to participate in the litigation as parties. Only the owners' committee, as its representative organization, can participate in the litigation in the name of the owners' meeting. All actions of the owners' committee in litigation represent the owners' assembly, and its legal consequences ultimately belong to the owners' assembly. In view of this, we must further explain the term "the litigation subject of the owners' committee", that is, the real litigation subject can only be the owners' assembly, and the owners' committee is only the subject of direct litigation and the representative of the owners' assembly. Of course, branches similar to insurance companies and commercial banks can participate in litigation as independent litigants within a certain range, although they do not have independent property and liability capabilities. Within the scope of its functions and powers, the owners' committee may participate in litigation in its own name on disputes over rights and obligations involved in its actions. This will also ensure that the owners' committee will exercise its rights more actively and take the initiative to undertake corresponding obligations, so as not to exist in name only.

It should be noted that the above path must be based on clearly defining the nature and status of the owners' committee and owners' congress in legislation. Although in the current judicial practice, the owners' committee can be treated as "other organizations" according to the provisions of Article 40 of the Opinions on Civil Procedure, and then the owners' committee can be allowed to become a qualified party. However, not legally defining the civil subject qualifications of the owners' congress and the owners' committee and not recognizing their civil rights is extremely unfavorable to the ultimate attribution of the civil liability that the owners' committee may bear as a party, and of course it is not conducive to stimulating the enthusiasm of the owners' committee to safeguard the legitimate rights and interests of all owners, and it also sets an invisible obstacle for the smooth operation of the judicial settlement mechanism of property disputes.

2. The owners' committee belongs to other organizations, and its civil subject qualification cannot be established only by administrative regulations such as the Property Management Regulations. Moreover, the Property Management Regulations are inherently inadequate in this respect, and [18] ultimately depends on the formulation of basic civil laws such as the Civil Code. Therefore, in the current legal framework, we can only follow the existing legal provisions and seek a reasonable basis for the owners' Committee to participate in litigation. The author thinks that it can be reasonably explained through the representative litigation system and the litigation agent system. According to the property management regulations, the members of the owners' committee must be owners in the property management area. Therefore, for those civil lawsuits related to property management affairs involving all or most owners (including members of the owners' committee), the representative litigation system can be completely applied, and the members of the owners' committee are regarded as representatives of all or most owners, giving the members of the owners' committee the qualification basis to participate in litigation on behalf of the owners in any form of litigation. It should be noted that when members of the owners' committee take part in the litigation as representatives, they still have to take part in the litigation in the name of all the owners (including themselves) they represent. For lawsuits involving only a few or individual owners, the members of the owners' committee do not have the basis to be qualified representatives, and the owners can only choose to sue alone or entrust the members of the owners' committee as litigation agents to bring a lawsuit to the court. Of course, such entrustment must be approved by the competent court.

Regrettably, when the draft property law was deliberated for the fifth time, the hot issue of whether the owners' committee could become the main body of civil litigation was cautiously given the answer of "no provision for the time being". The reason is that the owners' congress is the autonomous organization of the owners, and the owners' committee is the executive body of the owners' congress, and the rights and obligations enjoyed by the owners' congress or the owners' committee fall on the owners. At present, many communities have not established owners' congresses or owners' committees, so there is no provision for the right to file a lawsuit or apply for arbitration to the owners' congresses or owners' committees for the time being; 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. The property law that has been implemented does not clearly stipulate the legal status of the owners' Committee, which once again evades this practical problem.

At present, property management companies often infringe on the rights and interests of owners, and even in many places, cases of beating and personal injury of owners due to property disputes have been exposed. The author believes that if it is clear that the owners' committee can participate in civil litigation as an independent litigation subject, it will enable owners with the same interests to gather strength and resources and better safeguard their own rights and interests. If only a single individual owner is allowed to file a lawsuit against the infringed rights and interests, it will be extremely unfavorable to protect the owners' rights and interests. Every owner is the most basic subject in our social life. If their legitimate rights and interests are not effectively guaranteed, the pace of building a harmonious society will be hindered.

Kant's famous saying "Being is reasonable" is not a golden rule, but it is an indisputable fact that many owners have high hopes for safeguarding their rights and interests through the owners' committee. In addition, some local property management laws and regulations also expect to clearly define the legal status of the owners' committee, so as to enhance the operability of the judicial settlement mechanism of property disputes. Although the Property Law, as the basic civil law of our country, has finally avoided the problems of the owners' committee, the owners' committee has been active in real life for some time, and this good practice will certainly be maintained. In this way, because there is no clear and uniform provision in the law, the actual operation may vary from place to place. In order to ensure the realization of the rule of law and judicial unity, the author believes that the legal status of the owners' committee should not be avoided in judicial practice, which has important practical significance, but should be specifically defined from its subject qualification, litigation status, litigation rights and obligations and so on. Even if the law does not make clear provisions on this issue, judicial practice can still make specific operations in line with legal principles and basic spirit, and make positive and beneficial attempts in the judicial settlement mechanism of property disputes. Combined with the exploration made by the Supreme People's Court and local people's courts in solving related property disputes, according to the provisions of Article 2 of the Contract Law, Article 49 of the Civil Procedure Law and Article 40 of the Opinions on Civil Procedure, it is a simple and applicable shortcut to directly define the owners' committee as "other organizations" within the current legal framework to ensure its qualification as the subject of civil litigation and participate in related civil litigation. In this way, it is not only conducive to reducing the litigation cost of the parties, saving limited judicial resources and solving practical problems faced in judicial practice; At the same time, it is also conducive to improving the efficiency of litigation, gradually improving the judicial settlement mechanism of property disputes, and better safeguarding the legitimate rights and interests of owners and their counterparts.