“住改商”法律问题研究

发布时间：2018-06-22 02:16

本文选题：住宅 + 商用　；参考：《重庆大学》2015年硕士论文

【摘要】：自上世纪80年代末,我国的市场经济快速蓬勃发展。为了在竞争激烈的市场经济中获取一席之地,越来越多的中小型企业或者个体户都力图使成本最小化而利润最大化。同时,国有体制改革、市场竞争愈发激烈等原因导致了下岗职工增加,从而使社会经济压力、就业压力不断增加。越来越多的城市业主将房屋从住宅用途改变为商业用途或办公用途,这就是所谓的“住改商”。“住改商”的出现不仅给居民的日常生活带来了极大便利,而且推动了中小型企业迅猛发展,带动就业,减轻政府的压力,同时也实现了城市功能适度混合布局。当然,随之也引发了一系列的问题,“住改商”过多占用了居住小区的公共配套资源,容易影响小区的居住环境,也给国家财政收入造成损失。总的来说,“住改商”的产生和发展符合市场经济趋势,应当引导“住改商”业主合理行使改变住宅用途的权利,积极履行相应的法律义务。目前,我国的《物权法》等法律、相关司法解释以及地方性法规中,虽然都存在关于“住改商”的相关规定,但并不完善,缺乏可操作性。归纳下来:“住改商”存在的法律问题主要有以下三个方面:其一,界定利害关系业主范围的标准不合理。其二,利害关系业主同意规则制度设计不科学。其三,缺乏相关规定统一且合理的限制经营范围。本文通过对“住改商”法律问题进行剖析,对完善“住改商”立法提出建议。首先,应当明确界定利害关系业主的法理标准,根据此标准厘清利害关系业主的范围,即本栋建筑物内的业主和能够证明有利害关系的其他业主,排除掉“住改商”业主能够证明自己的经营活动不会给本栋建筑物内的业主造成不利影响的情况,同时,物业使用人也应当涵盖在业主范围内。其次,采纳“多数决”和紧邻业主“全票决”相结合的方式,以书面形式表决通过“住改商”行为,建议由业主委员会或物业管理公司作为主体按照一定的程序代为征求利害关系业主同意。最后,在尊重限制经营范围之原则的前提下,以立法的方式,限制在住宅区内从事严重影响小区居住环境、造成重大污染或者具有高度危险性的商业经营活动,同时,采用订立管理规约、完善工商审核程序和审查业主经营活动的方式,限制“住改商”的经营范围。
[Abstract]:Since the end of 1980's, the market economy of our country has developed rapidly. In order to gain a place in the competitive market economy, more and more small and medium-sized enterprises or self-employed enterprises try to minimize costs and maximize profits. At the same time, the reform of the state-owned system and the increasingly fierce market competition have led to the increase of laid-off workers, thus increasing the pressure of social economy and employment. A growing number of urban owners are shifting their homes from residential to commercial or office uses, known as "home changers." The appearance of "housing reform business" not only brings great convenience to the daily life of residents, but also promotes the rapid development of small and medium-sized enterprises, promotes employment, lightens the pressure of the government, and realizes the moderate mixed layout of urban functions. Of course, it also leads to a series of problems, "housing change business" too much occupied the living quarter of public supporting resources, easy to affect the residential environment, but also to the national financial revenue losses. In general, the emergence and development of "residence change merchants" accord with the trend of market economy, and the owners should be guided to exercise the right to change the use of housing reasonably and fulfill the corresponding legal obligations actively. At present, in our country's "property Law" and other laws, relevant judicial interpretation as well as local laws and regulations, although there are relevant provisions on "housing reform business", but not perfect, lack of operability. To sum up: there are three main legal problems in RTC: first, the standard of defining the scope of interested owners is unreasonable. Second, the interested owners agree that the design of rules is not scientific. Third, the lack of relevant provisions unified and reasonable restrictions on the scope of business. Based on the analysis of the legal problems of "housing reform business", this paper puts forward some suggestions on how to perfect the "housing reform business" legislation. First of all, the legal criteria for interested owners should be clearly defined, according to which the scope of interested owners should be clarified, that is, the owners in this building and other owners who can prove their interest, The owner can prove that his business activities will not adversely affect the owner of the building. At the same time, the owner of the property should also be covered by the owner. Secondly, adopting the combination of "majority decision" and "universal vote" of the next owner, and adopting a written vote to pass the act of "residence reform business". It is suggested that the owner committee or the property management company should seek the consent of the interested owner in accordance with certain procedures. Finally, on the premise of respecting the principle of limiting the scope of business, and by way of legislation, to restrict the residential areas from engaging in commercial activities that seriously affect the living environment of the residential areas, cause serious pollution or are highly dangerous, and at the same time, In order to limit the business scope of "residence change business", we should establish management rules, perfect the procedure of industrial and commercial audit and examine the management activities of owners.
【学位授予单位】：重庆大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.2

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