论住宅小区会所的所有权归属及其诉讼实务

On Clubhouse Ownership in Residential Community

与会所有关的争议案件日渐增多,根源于物权法并无明确会所的归属,司法判决不统一。对于会所的归属,理论界大致有四种观点:业主所有权说、建设单位所有说、区分说和意思自治说,前三种以会所法律关系的主体为理论基础,而意思自治原则以物权发生的原因行为即合同之当事人的主观愿望为基础,充分尊重其自主性,更能体现主体的平等性,平衡双方利益,便于司法处理相关案件。对于与会所有关争议的诉讼实务,以实体法主体的权利为基础,以适格的诉讼主体实现诉讼目的。

The number of relevant dispute cases about clubhouse is increasing,and the root lies in that there is no clear definition about the clubhouse ownership in the property law,that’s why judicial decisions are not uniform.For the ownership of the clubhouse,the academic circle usually breaks down into the following four points of view:some suggest that the club belongs to the owner of the community;some believe that the club should belong to the developer;some think that the ownership belongs to different civil subjects according to different standards,while others support the Theory?of Party Autonomy.The first three base its theory foundation on the subjects of the legal relationship,while the last base its theory on the behavior and the cause of the property right which is the subjective desire of the parties to the contract,respecting their autonomy,reflecting their legal status,balancing the interests of both parties and facilitating the judicial handling of related cases.For the litigation practice of the dispute related to the club,based on the right of the subject of the substantive law,eligible litigation subject should be adopted to achieve the purpose of litigation.