评《物权法》“业主的建筑物区分所有权”

On the Divisional Ownership of Buildings in China’s Property Law

我国《物权法》第六章"业主的建筑物区分所有权"确认了一种新型物权。该权利具有组合性、特殊性,突破了传统物权法中一物一权、物权排他、物权客体独立原则,同时凸现了物法与人法之结合,而且设计了更为科学的业主共同事项决议方式,是为值得称道之处。但该制度也表现出物权体系逻辑顺序混乱、管理权融入受阻、法律关系主体间利益失衡、相关立法越权、业主委员会法律地位尚未明确等缺陷。

The divisional ownership of buildings, a new type of property right, is regulated in the 6^th chapter of China＇s Property Law. The right of divisional ownership of buildings consists of several typical rights and is outstandingly unique in China＇s Property Law. It breaches several traditional property right principles including one right on one property, the independence of property and the exclusionism of property right. It is highly praised for its harmonious combination of the property rights and the identity rights, also for its more reasonable decision-making methods. However, it has its own flaws such as the chaos of the constructive logic of classical property law, the contradiction between the right of divisional ownership of buildings and management right, the uneven of interests, the offside of legislative power and the uncertainty of the legal status of owners＇ council.