Study On The Voting Rules Of Owners In The Civil Code

Since the reform and opening up,with the rapid development of China’s economy,the rapid advancement of urbanization and the emergence of a large number of high-rise residential areas,people’s living style has changed significantly.According to the provisions on differentiated ownership of buildings in the civil code,the owners in the residential community not only have the exclusive right to the exclusive parts they own,but also have the right to jointly own and jointly manage the common parts such as gardens and clubs.Under the provisions of the voting rules of the owners,the owners realize the common ownership and common management rights of the owners through the resolutions of the owners’ meeting.The civil code has greatly revised the voting rules of owners,which to some extent responds to the social focus topics such as the difficulty of using owners’ maintenance funds and the decoration of elevators in residential areas before the promulgation of the civil code.However,by combing the current laws,local regulations and court precedents,the author finds that there are still the following problems in the voting rules of owners: first,there is a dispute over the effectiveness of the presumption clause of non voting owners’ expression of will under the new provisions of "participation in voting" of owners;Second,it is difficult to protect the rights and interests of individual owners under the "majority rule".For the presumption clause of non voting owner’s will,it is embodied in the clause of "non participation in voting is deemed as valid consent" in the voting votes,rules of procedure and local property management regulations.Its essence is "silence is deemed as consent".Its effectiveness is affected by the silence behavior rule.Its reason is to deal with the "voting deadlock" of the resolution of the owners’ meeting.By combing and analyzing the theory and situation that silence has legal effect,and combined with the meaning and purpose of "participating in voting" in article 278 of the civil code,we can clarify the effect of the presumption clause of non voting owner’s intention under various forms.At the same time,the silent voting clause of the owner exists due to the "voting deadlock".The problem of "voting deadlock" can be solved by improving the owner’s representative system,establishing a partial common partial voting system and improving the way of electronic voting.For the difficult problem of protecting the rights and interests of individual owners under the "majority rule",the essence of the "majority rule" is a form of "the minority obeys the majority",which inevitably sacrifices the rights and interests of individual owners;In addition,the existing "majority rule" and the imperfect post relief method may also lead to the damage to the rights and interests of most owners.For this problem,on the basis of expanding the remedies of rights by agreement and determining the theoretical explanation of the identification standard of owners’ abuse of revocation right,we can solve the problem that it is difficult to protect the rights and interests of individual owners by perfecting the "special majority decision" rule,determining the elements for the exercise of owners’ revocation right and clarifying the scope of owners’ right to know.