区分所有建筑物的重建

Reconstruction of Condominium Building

区分所有建筑物重建可借鉴日本法的经验,对其设立详实的程序规定,以利实行。重建时对业主间的权益调整,应创设卖渡请求权和买回请求权两种制度;对因重建所涉及的第三人的权益,应采纳当代比较法的共同经验。小区内特定栋区分所有建筑物和全体建筑物的"一揽子"重建,应实行二重多数决制度。为了顺利实施重建,还有必要厘清区分所有建筑物一部灭失的复旧(修复)与重建的关系以及区分所有建筑物罹受灾害全部灭失时再建与重建的关系。

The reconstruction of condominium building is the most difficult problem in its management. However, in practice, the reconstruction is sometimes quite necessary or even urgent at that time. There are differences between the reconstruction of condominium building and the rebuilding, remodeling and additional building. In comparative law, there are two vote models for the reconstruction, i. e. , the unanimous decision and the majority decision. The latter has been taken by our Real Property Law. The reconstruction of condominium building in China should learn from the experience of Jap- anese law and establish concrete procedures for actual practice. The selling out claim and the pur- chasing back claim should be established during the reconstruction for the adjustment of rights among owners, and the right and interest of a third party should also be adjusted properly to carry out the reconstruction smoothly. The reconstruction should be carried out by the reconstruction group, which is different from the original owner group （condominium owner group） in its com- posing members, foundation purpose and dismissal time. As for the reconstruction of a specific condominium building and the whole condominium buildings in one residential area, the system of duplicate majority decision in Japanese law should be adopted. The partial loss and destruction of the condominium building is the common reason for resto- ration （repair） and reconstruction. However, the restoration is under the prerequisite that the original building will be maintained, while the reconstruction means the demolishment of original condominium building and the rebuilding of a new one. Moreover, the restoration is carried out by the owner（s） or the administrator of the building, while the reconstruction is carried out by the reconstruction group. In the event the building is totally destroyed due to earthquake, fire, flood and typhoon, usually an ＂Act of Special Measures on Rebuilding＂ will be drafted to solve this problem in the comparative law.