法律英语论文(1)业主委员会在中国的法律地位

Discussion on the Legal Status of Owner’s CommitteeBy Gao JundeInstructor: Sun ShiquanTranslation 0803, Grade 08, English Department School of Foreign LanguagesZhongnan University of economics and lawJune, 2011ContentsAbstract& key word (1)Introduction (2)1.Introduction of owners’ committee (3)1.1Definition (3)1.2Duties (3)2.Legislation and judicial practices in China at the moment (3)2.1Relative items in property law (3)3.Legislative patterns abroad on owners’ committee (4)3.1. Legal person / corporate ........ (4)3.2. Incorporate........ ....................... . (4)3.3. Compromise pattern........ (4)3.4. Pragmatic pattern4. Personal views on the legal status of owners’ committee........ ....................... ..... (4)4. Personal views on the legal status of owners’ committee (5)4.1 Owners’ committee is an independent corporation (5)Conclusion (6)Bibliography (6)AbstractAlong with the rapid development of urbanization,the management of residential quarters has brought a new type of market-oriented organization, the property management company. Thus some new phrases such as owner, owners meeting, and owner’s committee have come into being and approached our daily lives. In the prosecution of its duties, owner’s committee usually has difficulties dealing with property management companies, real estate developers, residents and government branches, which sometimes lead to sue cases. One of the most important causes is that the legal status of owner’s committee in our country has not been clearly defined in correlative laws at the present time, resulting in different conclusions may have been made by the district courts. Under such circumstances, it is of huge significance to standardize and regulate the property management industry and protect the owner’s legal rights to the best of our ability. This essay is set in four parts: part one is introduction about definition, development course and duties of owner’s committee; part two elaborates the law and the judicial practice about owner’s committee; part three introduces practices in other countries about owner’s committee; part four demonstrates the author’s view, with reasons why owner’s committee is defined as unincorporated organization, as well as why restrictions exist when it has right to be a principal.Key words:legal status owners’ committee unincorporated organizationIntroductionOwner s’ committee is a product of market development, which is also required by the lasting prosperity of real estate industry and property management industry. As a non-profit organization and self-government federation, owners’committee undertakes the responsibilities to represent and speak for the apartment owners who are in weak position against other parties concerned such as developer, property management companies. When making decisions concerning the whole neighborhood, the committee collects opinions from owners, coordinates among owners of various views, and maintains a friendly and equal relationship dealing with related parties. Although owners committee as a auxiliary substance enjoys its rights as well as obligations during participation in community management, we can not ignore the fact of owners committee without clear and authoritative legal status, let along the problem of obscure positioning and lack of operation standards, which together usually resulting in arguments with property management companies, or even compromises to sacrifice a part of owners’ benefits. Consequently, the legal status of owners committee has close connection with the ownership of aftereffects and liabilities of problems in relative disputes or cases. It needs our common efforts to improve the situations by assuring the due legal status of owners’committee and helping it fulfilling its functions.1. Introduction of owners’ committee1.1DefinitionOwners’committee is a new type of self-government organization brought along with urbanization and professional community management. Yet so far no clear definition can been found in “property law”or “regulation on property management.”It is generally recognized that owners’committee is set up by owners meeting, managed by owner representatives elected as spokesmen, aiming to manage legal property within the boundary of laws. The right of owners’ committee initiates from the ownership of property and the committee works on behalf of all owners involved.1.2DutiesPerforming as the executive authority of owners meeting, the committee should hold commitment to the whole owners, implement the collective decision and regular policies of owners meeting. To be more detailed, the duties of owners’committee can be concluded as follows:1.Summon the owners for general meeting and report in meeting on theoperation of property management.2.Responsible to sign a service contract with property managementcompany on behalf of all owners.3.Keep contact with property owners and users for opinions and suggestions,supervise and assist in promoting the property management.4.Monitor the implementation of management regulation.5.Other duties authorized by the owners meeting.2. Legislation and judicial practices in China at the moment2.1. Relative items in property lawIn accordance with the paragraph 2 of article 83 of property law, owners’committee are entitled to prevent behaviors that damage owners’ benefits such as improper dumping trash, illegal building, emitting poisonous materials or gases, unlicensed petting, and impose a fine against these behaviors or file a claim for the losses. But apart from the administrative function, the property law does not clearly point out whether it enjoys the rights of action.The obscure legal status of owner s’committee in property law has aroused heated social debates. Hu Kangsheng, director of the legislativecommittee, national people’s congress explained that the legislative committee considered the immaturity of owners’committee system in many neighborhoods and decided to put aside for the time being to draft a new law crystallizing the rights of action, judicial arbitration of owners’ committee. As for the disputes on behaviors violating the shared interests of owners, electing a litigation representative for civil lawsuit is the usual solution being recommended.3. Legislative patterns abroad on owners’ committee3.1. Legal person / corporateIt is also called the French pattern for legal pattern is best illustrated in France where totally admits the legal status of owners’ committee as independent legal person to perform civil rights and obligations. In France, owners’ committee is categorized into the co-owners association, a main body with legal rights and obligation, enjoying complete legal status. Not only France, Hong Kong SAR laws carry similar policies on the owners’ committee.3.2. IncorporateIt is named as well the German pattern which is the opposite of the French pattern. The laws in Germany deny the legal status of owners’committee as complete civil undertaker and define it as ordinary organization without rights. The most important examples of this pattern are Germany and Taiwan Area. To illustrate, the “apartment building regulation”in Taiwan remarks, owners’committee should work as the administrative organization of the whole owners’authority. With such position, we can regard owners’committee as ordinary organization without real legal status.3.3. Compromise patternThis pattern is best implemented in Japan, so some named Japanese pattern. Unlike the extreme policies of the first two patterns discussed above, the Japanese pattern confirms the rights as principle of owners’committee on certain conditions. Those which meet the criteria of corporate identity will be admitted and authorized rights of lawsuits. Additional criterion is mainly determined by the number of owners, or the size and management standards of the owners’ committee.3.4. Pragmatic patternThe pragmatic pattern is widely used in America in which the precedents insert great influence on the confirmation whether the owners’committee has the rights as principle. It has been running under the principle that favors reasonable settlement in coping with the disputes. To some extent, it has admitted the legal status in trials while legislative recognition can be found nowhere in existing laws. Since the 1970s, through cases sentence, the owners’committee organized by community residents was in fact recognized as principle with corporate qualification.4. Personal views on the legal status of owners’ committee4.1 Owners’ committee is an independent corporationDespite the fact no clear recognition of owners’ committee is given by laws in China, it is safe to claim its position as independent body. Some judicial interpretations support this opinion as it is actually helpful and significant to set up organization like owners’committee to deal with disputes on property management locally. However, some experts argue that it may weaken the relationship between the owners and property management companies and lead to gap or problems. If we place owners’committee just as the executive organization of owners meeting, then it shows that the power is authorized by the owners, providing sensible theory for owners’committee. To sum up, we recommend confirm owners’committee as independent body, equal to the natural person and the legal person for the following reasons:1.The owners’committee is set up according to law. It is outlined inArticle 10 of regulations on property management: owners’committee should be set up through owners meeting, the powerauthority of owners in an eligible community reaching certain amountof owners. After establishment, it should register at the relativeadministrative department of local government. In this sense, we canregard the existence of owners’committee legal because of theadministration of government.2.The owners’committee is based on organization structure. Theowners’ committee is the permanent establishment of owners meetingwith its own charter and regulation, committee members and postsetting including director, deputy director and secretary general whoare mainly responsible for the realizing the functions of owners’committee.3.The owners’ committee possesses its assets that belong to all ownerslike the revenue created by renting public space, public equipments aswell as regular operation funds. Besides, the owners’committeemanages and supervises the expenditure of community repairing. ConclusionThe issues on property and status of the owners committee have been a lasting controversy in both theoretically and pragmatically, and the focus lies in whether the owners’ committee should be taken as independent subject in civil activities. Just as Max said, laws are the description instead of creation of society. Social needs will determine the laws. It is a reasonable approach to confirm parts of the legal status of owners’ committee, so as to better protect the benefits of owners, to solve problems in property management in a more efficient way, eventually respond to the social demands. Yet it should be made clear that owners’ committee is inevitably more or less limited within the boundary as the subsidiary of owners meeting for the working authority and scope are closely related to the regulations of owners meeting and other administrative regulations. What should be done next is more judicial support including legislative efforts and judicial explanation to recognize the due status of owners’ committee.Bibliography:1.Ma Cheng, Study on legal status of owners’ committee,/2.Li Shishan & Wang Anya & Tang Yihu, Property Law, P175, 2008.09, PekingUniversity Press.3.Article 1, Article 2 of regulations on property management.4.Huang Leping, property right and property management practices, P61, 2008.04,Law Press China.5.Liu Cuncang, brief analysis of owners’ committee and its right as principle, Chinalawyer network:/pages/2007-8-3/s40431.html。