On The Owner's Right Of Revocation

With the promulgation and implementation of Property Law of the People's Republic of China in 2007, the system of owner's revocation right has been established in China. Since this system has only been carried out for more than three years from the date of establishing, there are many issues over this system, such as property, subject and object, the execution period and the scope of validity of the system. Some problems in the judicial practice of the system of owner's revocation right in China have been discussed and the improvement of this system has been considered deeply in this thesis and the author's own opinions have been proposed herein.This thesis is divided into three parts. The contents are as the follows:Part-1 is about the definition and the establishing significance of owner's right of revocation. Firstly, the concept of owner's right of revocation is defined; secondly, the character of owner's right of revocation is defined; thirdly, the establishing significance of owner's right of revocation in China is summarized in this part.Part-2 is about some problems in the judicial practice of the system of owner's right of revocation in China.Firstly, the judicial confirmation of owner's right of revocation in subject. First of all, the judicial confirmation of the accuser in the case of owner's right of revocation, which proposes that when a resolution is made by the owners'congress or owners'committee, the owners who vote for it or do not remonstrate it should not litigate the revocation afterwards. In the second place, the judicial confirmation of other people who become the accusers in the litigation of owner's right of revocation, which proposes that the residents such as the exclusive use right for a third party, the users and borrowers should be entitled to be the accusers in the litigation of owner's right of revocation, the exclusive use right for a third party should be given the right of revocation, the users and borrowers should be given the right of interpellating the owner to exert the right of revocation and the right of participating in litigation when the owners delay in exerting the right of revocation, which affects the rights and benefits of the users and borrowers. But, the rights should be subjected to obligations. In the third place, the judicial confirmation of the defendant in the litigation of owner's right of revocation. The relevant systems in foreign countries, Taiwan area and the Hong Kong Special Administrative Region are used as a source of reference and a conclusion is made that the position of the litigant of the owner's committee should be confirmed in the scope of the management of co-owned property in China.Secondly, the judicial confirmation of owner's right of revocation in object. According to the relevant legal rules in Germany, France, etc., a resolution is proposed that in our country, the defective resolutions of the owners'congress or owners'committee should be differentiated as invalid and revocable ones and the object of owner's right of revocation should be confirmed as the defective one which is not amended afterwards, excepting the invalid resolution of the owners'congress or owners'committee.Thirdly, the judicial confirmation of the owner's right of revocation in execution period. Taking the relevant legal rules in countries like France as example, the point that the execution period of the right of revocation in China is too long and should be reduced to no more than two months is proposed.Fourthly, the judicial confirmation of owner's right of revocation in the legal validity, which proposes: First of all, the validity of owner's right of revocation should not only govern all owners, but also govern the users of real properties; in the second place, if the resolution of owners'congress or owners'committee involves the third party except the owner, then the validity of owner's right of revocation should also govern the third party; in the third place, a regulation should be made that during the period of litigation, if a resolution is defined as valid by the owners'congress or owners'committee but granted as a stay of execution by the People's Court, then the resolution should be suspended.Part-3 is about the conception of improving the system of owner's revocation right, which proposes: The application in the litigation of the owner's right of revocation should be reduced in judicial practice as much as possible; the protection mode of the owners'benefits should be changed from the simple post-compensation to pre-prevention plus post-compensation; the multilevel relief mechanism for the defective group resolutions made by the owners should be established and this relief mechanism should apply to the scientific adjudication rule in the litigation of the owner's right of revocation and apply to the summary procedure and the evidence rule and the standards of revocation should be mastered strictly.