论建筑物区分所有权的实现——以决议行为为切入点

The Realization of Division Ownership of Buildings——The Breakthrough of Resolution

通说观点认为建筑物区分所有权由专有权、共有权和公共事务管理权三方面构成,然而对共有权和公共事务管理权能否实现以及如何实现却缺乏足够的考虑。建筑物区分所有权的实现面临共有部分难以定性,实施共同管理的业主大会、业主委员会法律地位不明、设立困难以及决议的效力认定等诸多理论障碍。围绕决议行为向外明确业主大会及其委员会的地位,协调业主自治与公权力的关系,向内构建起决议行为的运行规则是建筑物区分所有权得以实现的应由之路。

Divisional ownership of building consist of exclusive right and own jointly right and common authority. But if the own jointly right and common authority can realize is still a problem.The legal character of the common parts is not clear. The legal status of the owners meeting and the owners committee are not defined by law. It is difficult to hold the meeting and to establish the own-ers committee, as well as the validity of resolution also need to definite. To realize the right,it is nec-essary to confirm the status of the owners meeting and the owners committee, to coordinate the rela-tionship between the power and the owners＇ autonomy, to establish special rules on the adoption of resolutions by these entities.