物权法时代的建筑物区分所有权——以物权法实施为视角

The Divisional Ownership,of Buildings in the Time of Real Right Law——A Research Based on the Implementation of Real Right Law

建筑物区分所有权是住宅商品化的要求,同时也是现代社会公民不动产所有权的重要形式。我国《物权法》以业主利益保护为立法宗旨,设专章(第六章)对建筑物区分所有权进行了规定,较好地回应了现实的需求。然而《物权法》对建筑物区分所有权的规定尚有不完善之处,包括没有明确规定建筑物区分所有人的共有权范围与保护措施,没有确立业主委员会的职能与诉讼地位,共有物权的经营、维修基金的管理等规定的缺乏可操作性等。"静态"的《物权法》在"动态"法律实践中要淋漓尽致的体现其生命力需要配套的法律法规和司法解释的尽快出台。

The divisional ownership of buildings are the request of housing commercialization,and it is an impor- tant form that modem society citizen’s real estate property rights.Our country’s Real Right Law takes the owner’s benefit as the legislative objection,and supposed the unique chapter(sixth chapter) to stipulate the divisional owner- ship of buildings which are responding to the reality.However,real right law has set the system of the divisional own- ership of buildings which is imperfect.Including the scope of co-ownership and protective measures about the divi- sional ownership of buildings are not clear,the function of the owner committee and the hwsuit status,the management of co-ownership,and the management of service fund and other problems are not feasible.The real right law which is static state wants to manifests its vitality vividly need relevant laws and regulations and judicial interpretation.