Research On The Administrative Regulation Of Owners' Condominium Right In China

Owners' condominium rights,as a property right protected by the constitutional law,excluding public authority and other people's arbitrary intervention.However,based on the concept of the social obligation of property rights,the owners' freedom to exercise ownership of buildings is limited.As a private right,the first choice is to apply the autonomy of private law.To a certain extent,it can meet the requirements of the public interest,but there are also some shortcomings in the limitation of private law.For instance,on issues concerning public safety and public welfare,the self-governance of owners slowed down and the means of adjustment in private law were limited.The freedom of property rights and the principle of the regulation of public law provide the theoretical basis for the regulation of public law in our country.Through a comprehensive review of the contents of public law regulation in the current laws,rules and regulations in our country and the analysis of how the court applied the regulation of public law in the judicial practice,the author will summarize the situation of public law concerning the autonomy of the owners in four aspects:Establishment of Owners Organization,Residential Fire Protection,Building Reconstruction,and Property Management Division.From these regulatory situations,it can reflect the ways of public power intervention in the private sphere,such as guiding and assisting in setting up owners' meetings,performing on behalf of the owners,providing financial subsidies,issuing administrative guidance,making administrative examination and approval,as well as imposing fines or administrative penalties.Many public law regulations faced by owners' private rights should,in their legitimacy,be in conformity with the commonweal,formal statutory and proportionality principle.The purpose of the intervention of the public power is debatable when the autonomous agencies of the owners are established and the property management is divided.Among the cases in which the self-governing body of the owners was established,there was still too much suspicion of over-interference by the public authority,and the means of regulation were not in accordance with theproportionality.If the means of public law regulation limit or detract from the owners' private rights,they should comply with the principle of legal reservation.In particular,the case of residential fire control needs to pay attention to,and if it is a gain-based regulation,it can not conflict with the upper-level law.The introduction of the regulation of public law can solve the problems brought by the failure of private law under certain circumstances.However,it may also cause excessive public regulation.Therefore,in view of the current situation in China and under the premise of respecting the autonomy of owners,when private law can not respond the needs of interest well,regulation of public law should be took into consideration.