我国住宅小区停车位权属问题研究

发布时间：2018-07-10 13:03

本文选题：小区停车位 + 物权法　；参考：《河南大学》2010年硕士论文

【摘要】： 近年来,社会经济快速发展,人民生活水平稳步提高。住房商品化的浪潮席卷了神州大地,越来越多的居民拥有了自己的住房,各式各样的住宅小区如同雨后春笋一样遍地开花。同时,汽车这个过去人们眼中的奢侈品,也开进了寻常百姓的家门。私人汽车保有量的激增使得小区停车位供应严重不足,关于停车位的法律纠纷日益增多,并为社会各界所广泛关注。在关于停车位的纠纷中,其产权归属始终是主要矛盾所在。停车位权属不明晰,使得有关停车位的买卖、租赁、使用、等环节纷纷出现问题。房地产开发商、物业管理公司、小区业主常常为此争论不休,各执一词。在《物权法》颁布前,地方多有立法,但都各行其是且规定混乱。《物权法》颁布后,学界对停车位之规定也争论颇多,始终无法令人信服地解决问题。关于小区停车位的诉讼,各地也是频频出现,法院始终没有统一的标准所遵循,不时出现案情类似而判决迥异的现象,社会效果不容乐观。学界对于小区停车位的权属问题始终未能达成共识,各种观点都有利有弊。本论文以我国住宅小区停车位权属为研究对象,通过分类型比较的分析方式对住宅小区的法律问题加以研究。论文分为五部分: 第一部分是关于小区停车位的概述。确定住宅小区停车位的含义和性质是讨论其归属的前提。停车位是指住宅小区中各种停车场所内仅供且可供一辆汽车停放之单元。停车位属于法律关系客体中的独立的物,并属于不动产的范畴,作为民事主体的自然人、法人或其他组织得取得停车位的所有权或使用权。以小区停车位的存在形态为划分标准对其进行分类,以在随后部分进行具体阐述。第二部分通过对《物权法》第74条解读,认为其规定存在以下问题:小区“规划”的范畴不明、如何“首先满足业主需要”上规定不清、车位如何流转及流转性质未作交代等问题。通过对北京、上海、南京、武汉、深圳对停车位问题的规定及具体实践,比较其优劣。认为长期以来,由于我国物权法的缺位,地方性法规缺乏上位法的支持而规定混乱,物权法的相关规定也存在模糊不清、操作性不强等问题,权属争议也因此而未完全平息。第三部分是对小区停车位的权属分析。首先,综合述评关于小区停车位权属的各种观点:“以从物论”未能厘清停车位物之属性、“投资人收益论”易导致实践中纠纷产生、“成本计入论”纸上谈兵并不具有操作性、“合同约定论”看似遵循意思自治原则实际上很难保证交易公平。其各有可取之处但均不能作为确定权属惟一依据。通过分析我国土地与建筑物互不分离原则和停车位的上位概念—建筑物区分所有权,展开其权属问题的认识和分析。最后,以设置和存在形态为划分标准,将停车位分地面停车位、地下停车位、楼房首层架空停车位、楼房屋顶平台停车位、立体停车位予以评述。第四部分通过比较,论述了日本、美国、德国和法国及我国台湾、澳门地区关于小区停车位权属的立法规定和司法实务,并提出了借鉴的意义。认为住宅小区停车位的权利归属模式并不是唯一的,在很多情况下,它既可以作为住宅小区的专有部分,也可以作为它的共有部分,应当以开放的思路来考察小区停车位的权属状态。第五部分,就停车位权属之立法协调及规制提出建议。包括一要完善物权法第74条中规定不明及操作性不强的条款,完善停车位登记制度,并通过立法来明确相关的争议问题,包括对于小区停车位在没有约定归属时应归业主共同所有;二是应结合我国国情和房地产特性,提高房地产法律的位阶和加强房地产财产权利的保护。
[Abstract]:In recent years, the rapid development of social economy and the steady improvement of the living standard of the people. The wave of commercialization of housing has swept the land of Shenzhou. More and more residents have their own houses. All kinds of residential quarters have sprung up like bamboo shoots after the rain. At the same time, the car, which goes to the eyes of the people, has also entered the ordinary people. The increase of private car ownership has caused serious shortage of parking space in the residential area, and the legal disputes about parking space are increasing, which is widely concerned by the community.
In the dispute about parking space, the ownership of property rights is always the main contradiction. The ownership of parking space is not clear, so that there are problems in the parking space, such as the sale, lease, use, and other links. Real estate developers, Property Management Company, residential owners often argue about this. After the promulgation of the property law, there are many disputes over the parking space in the academic circles, and there is always no convincing solution to the problem. The academic circles have not reached consensus on the ownership of parking space in the community, and all kinds of views have advantages and disadvantages. This paper takes the ownership of parking space in residential quarters of our country as the research object, and studies the legal problems of residential quarters through the analysis of types and comparison. The thesis is divided into five parts:
The first part is an overview of the parking space in the residential district. It is the premise to determine the meaning and nature of the parking space in the residential district. The parking space refers to the unit for the parking of a car in the various parking spaces in the residential district. The parking space belongs to the independent object in the object of the legal relationship and belongs to the category of the real estate. The natural person, legal person or other organization of the civil subject may obtain the ownership or the right to use the parking space. The existence form of the parking space of the district is classified as the dividing standard, so as to elaborate in the subsequent part.
The second part, through the interpretation of the seventy-fourth article of the property law, thinks that there are the following problems in its provisions: the scope of the "planning" of the community is unknown, how to "meet the needs of the owners first" is not clear, how the parking space is transferred and the nature of the circulation has not been explained. Through the regulations and tools of the parking space in Beijing, Shanghai, Nanjing, Wuhan and Shenzhen For a long time, because of the absence of the property law in our country and the lack of the support of the upper law in the local laws and regulations, the relevant provisions of the property law have also been obscured and the operation is not strong, and the power disputes have not been completely subsided.
The third part is the analysis of the ownership of the parking space in the community. First, a comprehensive review of the various views on the ownership of parking space in the district: "by the theory of things" can not clarify the property of parking space, "investor income theory" may lead to disputes in practice, and the "costing theory" paper is not operable, "contract agreement" It is difficult to follow the principle of autonomy in fact. It is difficult to ensure fair trade. It has its own merits but can not be the sole basis for determining ownership. Through the analysis of the principle of non separation of land and buildings and the upper concept of parking space in our country, the understanding and analysis of the ownership of buildings is carried out. Finally, it is set up and existed. The form is the standard to divide the parking space into the ground parking space, the underground parking space, the first floor parking space of the building, the parking space of the roof platform of the building, and the three-dimensional parking space.
The fourth part, through comparison, discusses the legislative provisions and judicial practice about the ownership of parking space in the District of Japan, the United States, Germany and France, Taiwan and Macao, and puts forward the significance of reference. It is not only the right ownership mode of the parking space in the residential district. In many cases, it can be used as a special residential district. Part of it can also be used as a common part of it. We should explore the ownership status of parking lots in an open way.
In the fifth part, some suggestions are made on the Legislative Coordination and regulation of the ownership of the parking space, including a perfect clause in the seventy-fourth article of the property law, to improve the parking space registration system, and to make clear the relevant disputes through legislation, including the common ownership of the parking space in the District when the parking space is not assigned; two It is necessary to improve the level of real estate law and strengthen the protection of real estate property rights in light of China's national conditions and real estate characteristics.
【学位授予单位】：河南大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D923.2

【引证文献】