Legal Work Committee of the Standing Committee of the National People's Congress

First review opinion based on the Civil Code

Local legislation "non-payment of property fees

Prohibited from running for members of the industry committee"

Required to be called off

　　Our reporter Zhu Ningning

　　From January 1 this year, the Civil Code was officially implemented.

A reporter from the Rule of Law Daily was informed that the Legislative Work Committee of the Standing Committee of the National People's Congress has recently made review opinions based on the original intent and spirit of the legislation of the Civil Code.

It is worth noting that this is the first time that the Legal Work Committee of the Standing Committee of the National People's Congress used the Civil Code as the upper law to deal with the review suggestions put forward by citizens since the Civil Code was promulgated and implemented.

　　As a "magic weapon" for safeguarding the rights and interests of owners, the importance of property committees is self-evident, not only related to how owners exercise their rights, but also related to the vital interests of the majority of owners.

However, in practice, the ratio of establishment of owners' conferences and owners' committees has not been high.

　　There are many reasons that make the establishment of the property committee difficult.

It is worth mentioning that some places have set thresholds for the establishment of property owners committees in the property management regulations. “Paying property fees and other related expenses on time” is a necessary condition for the election of members of the owners committee. Some citizens have reported to the Standing Committee of the National People’s Congress. The Legal Work Committee made recommendations for review.

　　The Legislative Work Committee of the Standing Committee of the National People's Congress has conducted research and found that the Civil Code's Property Rights Edition provides principled guidelines and regulations on the specific conditions and procedures for the establishment of owners' meetings and owners' committees.

Regarding "paying property fees and other related expenses on time" as a necessary condition for the election of members of the owners' committee, it lacks the basis of the upper law, does not conform to the original intent of the legislation and the spirit of the rule of law, and should be corrected.

　　“The owners’ committee is an autonomous organization of owners. The qualifications for election of its members are based on the differentiated ownership of buildings. They are the basic civil rights and interests granted to owners by the law. According to the relevant provisions of the Legislative Law and the Civil Code, local regulations should not be appropriate without a legal basis. Restrictions on the qualifications of members of the owners' committee." said the relevant person in charge of the Legal Work Committee of the Standing Committee of the National People's Congress.

Citizens who believe that they are inconsistent with the higher law make recommendations

　　In January 2020, the Legal Work Committee of the Standing Committee of the National People's Congress received a letter from a citizen, Zhang XX, in which he mentioned the provisions on the qualifications of election industry committee members in the property management regulations promulgated by a certain province.

　　According to the regulations, the first condition for members of the owners' committee is to "comply with relevant national laws, regulations, owners' conventions or management regulations, and rules of procedure of the owners' meeting, actively perform the obligations of owners, and pay property service fees and other related fees on time."

In Zhang's view, this provision is inconsistent with the relevant provisions of the "Property Management Regulations" (hereinafter referred to as "Regulations") promulgated by the State Council, and it is recommended to review them.

　　"Article 16 of the "Regulations" stipulates that the members of the owners' committee should be owners who are enthusiastic about public welfare, have a strong sense of responsibility, and have certain organizational capabilities. In other words, as long as they are community owners, they may be selected as members of the owners' committee. There are no other restrictions. The provincial regulations seem to be based on the perspective of the property company. Under the premise of conflict with the upper law, they try their best to emphasize the duties of the committee members rather than the rights." Zhang Moumou believes that this The regulations cause a practical problem: if the property company does not pass the owners' meeting to raise the fees indiscriminately, a group of owners are not satisfied with it and refuse to pay the property fees on time.

Then, according to provincial regulations, even if these owners actively participate in the election of the owners' committee in accordance with the law, they cannot become members of the owners' committee, and they cannot effectively fight for more rights for the owners through the owners' committee.

　　"In fact, generally speaking, an owner who is in arrears with property fees for a long time will not be elected as a member of the property committee. But if everyone thinks that the owner is fighting for everyone’s benefit, then even if he refuses to pay the property fees for a long time, Can get everyone's trust and support to be elected." Zhang Moumou said.

　　Coincidentally.

In September of the same year, another citizen proposed to review Article 31 of a province’s property management regulations through the online submission platform of China National People’s Congress.

The reviewer proposed that the second paragraph of Article 31 of the Provincial Regulations stipulates that “the property service fees and special housing maintenance funds must be paid on time” as a necessary condition for owners to participate in the election of members of the owners’ committee, which is in line with Article 6 of the Regulations. The provisions of Article 16 are inconsistent.

The local legislature gave multiple reasons

　　During the interview, the reporter learned that with regard to the establishment of an owner's committee, Article 271 of the Civil Code stipulates that the owners shall have the rights of co-ownership and joint management of the common parts other than the exclusive part.

Article 277 stipulates that owners can set up an owners’ meeting to elect an owners’ committee.

The specific conditions and procedures for the establishment of the owners’ assembly and the owners’ committee shall be in accordance with the provisions of laws and regulations.

The relevant departments of the local people's government and the residents committee shall provide guidance and assistance in the establishment of the owners' assembly and the election of the owners' committee.

　　The "Regulations" and local regulations fall within the scope of the "laws and regulations" mentioned in the Civil Code.

　　Article 6 of the "Regulations" stipulates that the owner of the house is the owner, who has the right to elect members of the owners' committee and the right to be elected.

Article 7 stipulates that in property management activities, owners shall perform the obligation to pay property service fees on time.

Article 16 stipulates that the members of the owners' committee shall be owners who are enthusiastic about public welfare undertakings, have a strong sense of responsibility, and have certain organizational capabilities.

　　After a rough analysis, the reporter found that the current national legislation that "pays property management fees and other related fees on time" as a necessary condition for the election of owners' committee members is not an isolated case. Many local property management regulations have similar provisions. .

The institution that formulated the regulations of a certain province that was proposed for review this time also stated that the reason for making such regulations was based on the actual needs of the province’s property management and also referred to the previous legislative experience of many other provinces and cities.

　　It is reported that the reason why the local legislation will "pay property fees and other related expenses on time" as a necessary condition for owners to participate in the election of owners’ committees is mainly based on several considerations: First, as an autonomous organization of owners, the main function of the owners’ committee is To serve the owners and safeguard the legal rights and interests of the owners, the members of the owners' committee should have high quality and ability.

Secondly, the "Regulations" stipulates that the Owners Committee has the obligation to urge the owners to pay the property fees. If the timely payment of the property fees is not a condition for the election of the Owners Committee members, the owners committee members who have not paid the property fees will ask other owners to pay the property fees. The embarrassing situation is not conducive to the normal performance of duties and effective work of the industry committee.

In addition, Article 31 of the Ministry of Housing and Urban-Rural Development's "Guiding Rules for the Owners' General Meeting and Owners' Committees" regards "exemplarily fulfilling the obligations of owners" as a condition for becoming a member of the owners' committee.

Therefore, the local legislature believes that the relevant regulations do not violate relevant national laws, administrative regulations and other relevant regulations.

The Legislative Work Committee made a final decision: not in line with the original intent of the legislation

　　After receiving the review suggestions from the citizens, in accordance with the work process, the Legal Work Committee of the Standing Committee of the National People's Congress initiated the review of the property management regulations of the two provinces.

After research, the Legal Work Committee of the Standing Committee of the National People's Congress believes that "paying property fees and other related expenses on time" as a necessary condition for the election of members of the owners' committee lacks a basis for higher law and does not conform to the original intent of the legislation and the spirit of the rule of law.

　　"The current laws and administrative regulations do not restrict the qualifications of the owners' committees. Under this circumstance, local regulations can stipulate the specific conditions and procedures for the establishment of the owners' committees, but it is not appropriate to set restrictions on membership. "The relevant person in charge of the Legal Work Committee of the Standing Committee of the National People's Congress said that the Civil Code's Property Rights Chapter clarifies that owners can carry out autonomous management through the owners' assembly and the owners' committee. The original intention of the legislation is to encourage owners to realize rights relief through autonomous management.

　　“In practice, owners who refuse to pay property fees request to participate in the election of the owners’ committee, mostly because they believe that the existing property management agency in the community infringes their legitimate rights and interests. According to the election procedures for the members of the owners’ committee, before the election of the owners’ meeting, The basic information, including whether to pay property service fees and other fees on time, will be publicized. Owners knowing that they refuse to pay the property fees, they are still elected as members of the owners’ committee through the owners’ meeting, indicating that most owners agree Its refusal to pay the property fee also reflects the problems in property management.” The Legal Work Committee of the Standing Committee of the National People’s Congress believes that at this time, laws and regulations should support the owners to achieve self-relief through self-government. If local regulations will be “on time” "Paying property fees and other expenses" as a restrictive condition for the election of members of the owners’ committee will deprive the owners of the statutory right to seek relief through autonomy in this case, which does not conform to the original intent of the legislation.

　　"The relationship between the owner and the property service company is a civil legal relationship based on the property service contract. The owner's refusal to pay the property service fee is a breach of contract stipulated in the Civil Code. The property service company can seek relief through the breach of contract. Local regulations Interfering in the civil legal relationship between equal subjects by means of qualification restrictions does not conform to the spirit of the rule of law." said the relevant person in charge of the Legal Work Committee of the Standing Committee of the National People's Congress.