建筑物区分所有权之共有权定性新探——以其内在规定性和我国实际为视角

A Qualitative Analysis of Co-Ownership of Condominium Ownership——From its Inherent Nature and China's Status Quo

对建筑物区分所有权之共有权的科学定性是建构相关法律规范的前提,但其定性一直是学界的重要争论点之一。无论于理论还是实践,现有定性既无法涵盖和诠释建筑物区分所有权之共有权的特性和理论,又无法理性权衡共有人的权利与义务,且与我国实际极为不符。从其特性和我国实际分析,建筑物区分所有权之共有权并非按份共有、共同共有、准共有,实为具有交错性质的新型共有。

A scientific definition is the premise to construct the law of co-ownership of condominium ownership,but the qualitativeness has been the one of controversial pointts in theory.In theory or in practice,these kinds of qualitativeness not only cannot cover and interpret its feature and theory,but also cannot rationally balance the co-owners＇ rights and obligations,or conform to China＇s reality.Analysed from its nature and China＇s reality,this paper holds that the co-ownership of condominium ownership is not several co-ownership,joint ownership or quasi-joint ownership,but a new and intricate co-ownership.