| In order to safeguard the legitimate interests of owners under the majority decision,the Real Right Law of the People ’ s Republic of China and its relevant judicial interpretations established the owner’s right of revocation in China,and then The Civil Code of the People’s Republic of China did not refine and improve it,and still used the original provisions.The phenomenon of overly principled legal provisions and different judgments in such cases is very prominent,affecting the authority and credibility of the judiciary.The courts mainly have differences of opinion on several aspects: whether a small number of owners can sue for the common interest of all,whether the owners who vote in favor can be the plaintiffs in the dispute over the right of revocation of owners,whether the owners’ meeting or the unfiled owners’ committee is a qualified defendant,whether the decision of the election committee or members and whether the property service contract is the object of the exercise of the owner’s right of revocation,and how the infringement of the legitimate rights and interests of the owner should be determined.Through the analysis of these problems,it can be concluded that the legislative purpose of the owner’s right of revocation is to prevent the "tyranny of the majority",protect the interests of the minority in the group resolution,belong to the right to form a lawsuit,and need to go through the court to make a judgment to truly exercise the right,in order to fully protect the rights of the owner,the scope of the owner who has the right to file a lawsuit should not be limited;As an autonomous management organization in the property area,the owners’ committee can be established after being elected by the owners’ meeting,and the owners’ meeting has certain assets,which meets the characteristics of "other organizations" in the Civil Procedure Law of the People’s Republic of China,and shall recognize the qualifications of the owners’ meeting and the unfiled owners’ committee as the subject of litigation;The decision of the owners’ general meeting shall be a matter for which a meeting has been convened and voted on by the owners,and the decision of the owners’ committee shall be a matter for the owners and members to vote jointly or for the owners’ committee to be publicized or notified in some externalized form;The owner’s right of revocation belongs to the remedy in the field of civil law,while the right of administrative revocation belongs to the remedy in the field of public law,and there is no problem of exercise order or mutual exclusion in its application;Due to the particularity of the differentiated ownership of buildings,the owner has a relative obligation to tolerate the decision of the owners’ meeting or the owners’ committee,and when the resolution made by the owners’ group restricts the legitimate rights and interests of the owners,the decision should be considered from the perspective of equality and the weighing of interests whether to infringe the legitimate rights and interests of the owners.In order to properly handle the adjudication of such disputes,the proposed plan: first,clarify the qualifications of the subject of litigation in the dispute over the right of revocation of the owner,all owners can be the plaintiff of the dispute over the right of revocation of the owner,and the general meeting of owners and the committee of the owner have the qualification to litigate;Second,it is clarified that the scope of the exercise of the owner’s right of withdrawal is the matters decided by the owners’ meeting and the owners’ committee within the scope of their authority;Third,establish the criteria for determining "infringement of the legitimate rights and interests of the owner",that is,the decision violates the principle of equality without justifiable reasons,and the means taken to restrict the personal interests of the owner,the purpose is improper,and the property rights and interests of the owner are not minimal and necessary,so as to unify the adjudication scale. |
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