业主物权与物业管理的冲突与调适探论

The Conflict between the Owner Real Right and the Estate Management and the Adjustment

我国业主物权与物业管理的立法有缺漏,管理观念取代了私权保护意识,《物权法》不能彻底解决业主物权与物业管理的冲突与调适问题。《物权法》的实施,需要有其他法的整体配套,新修改的《物业管理条例》仍须进一步完善。各地亟须对有关业主物权与物业管理的冲突与调适规范进行清理和修订。在有关业主物权与物业管理的冲突与调适的法律法规中,要体现尊重业主物权、加强服务意识、增强法治观念等。应按照下位法服从上位法、旧法服从新法的原则,梳理和处理国家和地方有关业主物权与物业管理的冲突与调适方面的法律法规与规范性文件,借鉴海内外立法经验,完善有关规范。

The conflict question between the owner real right and estate management is rather serious, which is not in conformity with the harmonious society＇s request. Our country＇s legislation of owner real right and estate management has the gaps and the omissions , the management idea is substituted for the private power protection consciousness. The real right law cannot thoroughly settle the problem of the donfilet between the owner real right and the estate management and the adjustment. The implementation of the real right law needs to have other laws forming a complete whole. The new revision of the estate management rule should be further consummated. Each region urgently needs to clean up and revise the concerned standards about the conflict and the adjustment between the owner real right and the estate management. The standards of the concerned laws and regulations about the conflict and the adjustment between the owner real right and estate management, must manifest respecting the owner real right, strengthening the service consciousness, enhancing the idea of government by law and so on . According to the principle of the lower position law submitting to the superior law and the old law submitting to the new law , we should comb and process the laws and regulations and the regulated documents about the conflict and the adjustment between the owner real right and the estate management, and consummate the concerned standards,drawing lessons from the legislative experience abroad.