论租赁房屋装饰装修纠纷处理
发布时间：2019-06-06 03:54
【摘要】：装饰装修纠纷的处理涉及到债权和物权两大法学领域,具体涉及添附制度、不当得利等民法理论,为解决法律适用问题,最高人民法院于2009年7月30日颁布的《最高人民法院关于审理城镇房屋租赁合同纠纷案件具体应用法律若干问题的解释》中区分不同情形,确定了各自的适用原则。本文从四个部分来分析此类纠纷的处理,包括法理、国内外的相关法律规定、案例解析和立法建议。 在法理方面,我们通常区分不同情形,从而具体适用添附、侵权赔偿和不当得利等原则来处理此类纠纷。如果承租人未经出租人同意,擅自进行装饰装修,构成侵权,承担侵权责任;承租人经同意装饰装修,一是对附合和未形成附合的装饰装修物分别适用不同的处理规则。未形成附合的装饰装修物,承租人作为所有权人享有处分权;已形成附合的装饰装修物区分合同无效、合同有效解除、合同履行期限届满情形,适用不同的处理规则;二是出租人是否对承租人的装饰装修进行补偿,如何补偿,要区分不同情况。合同无效时,出租人同意利用的装饰装修,基于不当得利对承租人进行补偿;不同意利用的,装饰装修的现值损失作为无效合同的损失,由双方按照过错承担;合同解除,由导致合同解除的违约方承担装饰装修残值损失。在双方均无过错情形下,由双方依照公平原则分担装饰装修残值损失;需要注意的是,合同解除时,如果出租人同意利用承租人装饰装修的,仍需基于不当得利对承租人予以补偿;合同履行期间届满,出租人取得附合装饰装修物无需补偿。 结合国内外的相关法律规定和司法实践来看,在《德国民法典》和《日本民法典》中有关该类纠纷的处理主要使用不当得利原则,即租赁合同解除或终止后,如果装饰装修物与房屋本身形成附和的,按照添附原理装饰装修物归属出租人,而承租人对房屋装饰装修的合理投入可以依据不当得利原则向出租人主张;如果装饰装修物与房屋本身未形成附和的,装饰装修物仍归承租人所有,承租人可以拆除该装饰装修物,因此给出租人造成损失的,应当赔偿。 从常见的案例类型,即装饰装修物与租赁房屋附和以及装饰装修物与租赁房屋未附和、经出租人同意与未经出租人同意装饰装修以及当租赁合同无效、被撤销及被解除等情况来分析,显然该司法解释的有关规定尚值得商榷和进一步修改。 本文最后建议区分适用不当得利和损害赔偿原则的情形,即区分善意添附和恶意添附,在善意添附的情况下适用不当得利原则,在租赁合同解除或终止后按照添附原理装饰装修物归属出租人,而承租人可以不当得利原则向出租人主张其合理的装饰装修投入;在恶意添附的情况下则适用损害赔偿原则,因为此时的承租人未经出租人同意而擅自进行装饰装修,已然构成侵权,应当对房出租人的相应损失进行赔偿。另外,还要区分租赁合同的不同效力情况,即合同无效和被撤销时以及合同被解除时、合同履行完毕时对装饰装修纠纷的不同处理办法。在合同无效和被撤销时,合同的效力存在瑕疵,此时按照各方的过错有无及过错大小决定其是否对损失承担责任、承担多少责任;合同被解除时,该合同已然生效,如果存在损失,则可以同时主张赔偿损失。如此一来,区分善意与恶意添附、合同效力的不同情形,以明确适用不当得利与损害赔偿的不同情况,更便于司法实践中的运用,以及切实维护承租人与出租人双方的合法权利。
[Abstract]:The processing of the decoration dispute involves the two major legal fields of creditor's rights and real right, in particular to the theory of the civil law, such as the addition of the system and the unjust enrichment, so as to solve the problem of the application of the law. The Supreme People's Court, promulgated by the Supreme People's Court on July 30,2009, distinguishes the different situations from the interpretation of the specific application of the law on the case of the case of the contract of the housing of the town and houses, and determines the respective application principle. This paper analyzes the processing of such disputes from four parts, including the legal theory, the relevant legal provisions at home and abroad, the case analysis and the legislative suggestions. In the field of jurisprudence, we usually distinguish between different situations, so we can apply the principle of attachment, tort compensation and unjust enrichment to deal with such cases. The Lessee shall, without the consent of the Lessor, carry out the decoration and decoration without authorization, make up the infringement, and bear the liability for infringement; the Lessee shall agree to the decoration and decoration. The first is to apply different treatment rules to the decoration and decoration which is attached and not formed. If the attached decoration and decoration are not formed, the Lessee shall enjoy the right of disposition as the owner. The attached decoration and decoration articles are not valid, the contract is effective, and the expiration of the contract performance period shall be subject to different treatment rules. the second is whether the lessor can compensate the decoration and decoration of the lessee, how to compensate, and distinguish the non-sympathy If the contract is invalid, the lessor agrees to make use of the decoration and decoration, and compensate the lessee based on the unjust enrichment; if the contract is not agreed, the present value loss of the decoration and decoration as the loss of the invalid contract shall be borne by the two parties in accordance with the fault; the contract solution In addition, the breaching party resulting in the cancellation of the contract shall be liable for the loss of the residual value of the decoration and decoration In case of no fault in both parties, the two parties share the loss of the residual value of the decoration and decoration in accordance with the principle of fairness; it is necessary to note that when the contract is released, if the lessor agrees to make use of the decoration of the lessee, the lessee shall compensate the lessee on the basis of the unjust enrichment; during the performance period of the contract, The Lessor has obtained the attached decoration and the decoration is not required to be supplemented. In combination with relevant legal provisions and judicial practice at home and abroad, the treatment of such disputes in the German Civil Code and the Japanese Civil Code mainly uses the principle of unjust enrichment, that is, after the lease contract is released or terminated, if the decoration and decoration are formed with the house itself, In addition, according to the attached principle, the decoration object is attached to the lessor, and the lessee's reasonable input to the decoration of the house can be claimed by the lessor according to the principle of non-profit. If the decoration and decoration are not attached to the house itself, the decoration and decoration will still be leased. in all case, that tenant may remove the decorative trim and, therefore, cause a loss to the lessor and shall In the case of compensation, from the common case type, that is, the decoration and the lease of the house and the non-attachment of the decoration and the leased property, the Lessor agrees with the decoration and decoration without the consent of the Lessor, and shall be cancelled and released when the lease contract is invalid. It is clear that the relevant provisions of the judicial interpretation are still worthy of discussion and analysis. In this paper, it is proposed to distinguish between the principle of unjust enrichment and the principle of compensation for damages, that is, to distinguish the principle of good will and the malice, and to apply the principle of unjust enrichment in the case of the addition of good will, and to decorate it according to the attached principle after the lease contract is released or terminated. The lessee may, without the consent of the lessor, conduct the decoration and decoration without the consent of the lessor. If the infringement is already constituted, the phase of the owner of the house shall be In addition, it is also necessary to distinguish between the different effect of the lease contract, that is, when the contract is invalid and the contract is cancelled, and when the contract is released, the decoration and decoration dispute shall be settled when the contract is completed. Different treatment methods. When the contract is invalid and is cancelled, the effect of the contract is defective. At this time, whether or not it is responsible for the loss is determined according to the fault and the fault size of the parties, and the contract has become effective when the contract is released. and, if there is a loss, may be the same as In this way, the loss is claimed. In this way, it is necessary to distinguish the different situations of good faith and malice and the effect of the contract, so as to clearly apply the different situations of unjust enrichment and damages, to be more convenient for the application in the judicial practice, and to effectively maintain the lessee and the lessor.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D913
[Abstract]:The processing of the decoration dispute involves the two major legal fields of creditor's rights and real right, in particular to the theory of the civil law, such as the addition of the system and the unjust enrichment, so as to solve the problem of the application of the law. The Supreme People's Court, promulgated by the Supreme People's Court on July 30,2009, distinguishes the different situations from the interpretation of the specific application of the law on the case of the case of the contract of the housing of the town and houses, and determines the respective application principle. This paper analyzes the processing of such disputes from four parts, including the legal theory, the relevant legal provisions at home and abroad, the case analysis and the legislative suggestions. In the field of jurisprudence, we usually distinguish between different situations, so we can apply the principle of attachment, tort compensation and unjust enrichment to deal with such cases. The Lessee shall, without the consent of the Lessor, carry out the decoration and decoration without authorization, make up the infringement, and bear the liability for infringement; the Lessee shall agree to the decoration and decoration. The first is to apply different treatment rules to the decoration and decoration which is attached and not formed. If the attached decoration and decoration are not formed, the Lessee shall enjoy the right of disposition as the owner. The attached decoration and decoration articles are not valid, the contract is effective, and the expiration of the contract performance period shall be subject to different treatment rules. the second is whether the lessor can compensate the decoration and decoration of the lessee, how to compensate, and distinguish the non-sympathy If the contract is invalid, the lessor agrees to make use of the decoration and decoration, and compensate the lessee based on the unjust enrichment; if the contract is not agreed, the present value loss of the decoration and decoration as the loss of the invalid contract shall be borne by the two parties in accordance with the fault; the contract solution In addition, the breaching party resulting in the cancellation of the contract shall be liable for the loss of the residual value of the decoration and decoration In case of no fault in both parties, the two parties share the loss of the residual value of the decoration and decoration in accordance with the principle of fairness; it is necessary to note that when the contract is released, if the lessor agrees to make use of the decoration of the lessee, the lessee shall compensate the lessee on the basis of the unjust enrichment; during the performance period of the contract, The Lessor has obtained the attached decoration and the decoration is not required to be supplemented. In combination with relevant legal provisions and judicial practice at home and abroad, the treatment of such disputes in the German Civil Code and the Japanese Civil Code mainly uses the principle of unjust enrichment, that is, after the lease contract is released or terminated, if the decoration and decoration are formed with the house itself, In addition, according to the attached principle, the decoration object is attached to the lessor, and the lessee's reasonable input to the decoration of the house can be claimed by the lessor according to the principle of non-profit. If the decoration and decoration are not attached to the house itself, the decoration and decoration will still be leased. in all case, that tenant may remove the decorative trim and, therefore, cause a loss to the lessor and shall In the case of compensation, from the common case type, that is, the decoration and the lease of the house and the non-attachment of the decoration and the leased property, the Lessor agrees with the decoration and decoration without the consent of the Lessor, and shall be cancelled and released when the lease contract is invalid. It is clear that the relevant provisions of the judicial interpretation are still worthy of discussion and analysis. In this paper, it is proposed to distinguish between the principle of unjust enrichment and the principle of compensation for damages, that is, to distinguish the principle of good will and the malice, and to apply the principle of unjust enrichment in the case of the addition of good will, and to decorate it according to the attached principle after the lease contract is released or terminated. The lessee may, without the consent of the lessor, conduct the decoration and decoration without the consent of the lessor. If the infringement is already constituted, the phase of the owner of the house shall be In addition, it is also necessary to distinguish between the different effect of the lease contract, that is, when the contract is invalid and the contract is cancelled, and when the contract is released, the decoration and decoration dispute shall be settled when the contract is completed. Different treatment methods. When the contract is invalid and is cancelled, the effect of the contract is defective. At this time, whether or not it is responsible for the loss is determined according to the fault and the fault size of the parties, and the contract has become effective when the contract is released. and, if there is a loss, may be the same as In this way, the loss is claimed. In this way, it is necessary to distinguish the different situations of good faith and malice and the effect of the contract, so as to clearly apply the different situations of unjust enrichment and damages, to be more convenient for the application in the judicial practice, and to effectively maintain the lessee and the lessor.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D913
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