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我国《物权法》和《物业管理条例》中均有“制定和修改业主大会议事规则”、“制定和修改管理规约”及“更换业主委员会成员”等字样,但在具体适用中,应由业主共同决定的这两个主要事项本身就存在适用前提缺失的问题:原来的业主大会议事规则由谁来拟定?原来的管理规约由谁来草拟?原来业主委员会的人选由谁来提名?这一系列的问题均由于目前规定的原则性过强而落实起来困难重重,亟待司法解释予以填补。确定业主共同决定事项范围的基本原则,一是彰显业主自治理念,重视管理规约的重要意义;二是重视利益衡量与价值判断,以调节区分所有者个人和团体之间的矛盾为着眼点。
China’s “Property Law” and “Property Management Regulations” are “formulating and revising the rules of procedure of the owners ’meeting”, “formulating and revising the management regulations” and “changing the members of the owners’ committee”, but the specific application , The two main issues that should be jointly decided by the owners themselves exist the question of the lack of applicable premises: Who made the original rules of procedure of the owners ’congress? Who drafted the original management protocol? Who made the original owners’ committee Nomination? All these series of questions are difficult to be implemented due to the principle of being overly prescribed at present and should be filled urgently by judicial interpretations. The basic principle of determining the scope of the matters jointly decided by the owners is to highlight the concept of owner autonomy and pay attention to the important meaning of the management statute. Second, attention should be paid to the measurement of interests and the value judgments, with a view to adjusting the contradiction between individual owners and groups.