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Published online by Cambridge University Press: 16 April 2015
This article identifies the problems and malfunctions of the Chinese apartment ownership regime that necessitates its formalization. The benefits of formalizing the apartment ownership, such as resolution of the social housing problem, and establishment of the mortgage-backed real estate market, are presented. Thereafter, we indicate that the success of formalizing apartment ownership in China depends on one hand on the extent to which the unique property market in China can be reconciled with acknowledged ways of dealing with apartment ownership in various other jurisdictions acting as comparative examples. On the other hand, simply grafting borrowed laws or legal institutions into a new context cannot achieve the desired effects. Legal culture matters and it cannot be downplayed in the formalizing process. Our conclusion is that the booming but immature Chinese apartment ownership market will benefit greatly if the casual link between the market economy and well-defined property rights are confirmed through legal formalization.
1 See Van der Merwe, CG, Apartment Ownership, International Encyclopedia of Comparative Law Vol. VI Ch. 5 3 (J.C.B. Mohr Publisher, 1994)Google Scholar. The following sources may provide more detail in respect of the various jurisdictions: For England and Wales see e.g. Clarke, D, Commonhold - The New Law (Jordans, 2002)Google Scholar. For Singapore, see e.g. Khublall, N, Strata Titles (Butterworths, 1995)Google Scholar. For Canada, see e.g. Herskowitz, H and Freedman, M, Condominium In Ontario - A Practical Analysis of The New Legislation (The Law Society of Upper Canada, 2001)Google Scholar. For the United States, see e.g. Rohan, P & Reskin, M, Condominium Law and Practice, loose-leaf (first published in 1965)Google Scholar. For Germany, see e.g. Baermann, J, Pick, E & Merle, W, Kommentar zum Wohnungseigentumsgesetz, Gesetz über das Wohnungseigentum und das Dauerwohnrecht, 9th edition, (Verlag C.H. Beck, 2003)Google Scholar and Goren, S, The Condominium Property Law of the Federal Republic of Germany of 15 March 1951, (Rothman & Co. 1994)Google Scholar.
2 The law of England and Wales is called “commonhold” (see the Commonhold and Leasehold Reform Act, 2002). In North America, it is known as a “condominium” (see the Uniform Condominium Act of 1977 (amended in 1980) of the United States and the Ontario Condominium Act of 1998 in Canada). In Australia, New Zealand and Singapore, it is established as “strata titles” (within the Torrens registration system, see for example the Land Titles (Strata) Act 41 of 1967 (as amended by the Land Titles (Strata) (Amendment) Act 1999) and the Building Maintenance and Strata Management Act 45 of 2004 in Singapore). In South Africa, it is called “sectional titles” (see the Sectional Titles Act 95 of 1986 (as amended) in South Africa). In countries with a civil-law based system, such as Germany and the Netherlands, the term used is “apartment ownership” (Wohnungseigentum / Appartementseigendom). For Germany, see Gesetz ueber das Wohnunseigentum und das Dauerwohnrecht of 1951 in Germany (WEG).
3 Van der Merwe CG, supra note 1 at 22.
4 Camdessus M, Managing Director of the International Monetary Fund, Address Before the High-Level Segment of the 1999 Substantive Session of the UN Economic and Social Council (July 5, 1999), available at LEXIS (last visited Jul. 11 2006); Posner R, “Creating a Legal Framework For Economic Development,” World Bank Program on Rule of Law, online: http://wbro.oxfordjournals.org/cgi/content/abstract/13/1/1 (accessed 1 September 2006); De Soto, H, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (Bantam Press, 2000)Google Scholar; Kennedy, D, “Laws and Developments”, in Law and Development: Facing Complexity In the 21st Century (Hatchard, J & Perry- Kessaris, A eds, Cavendish Publishing, 2003)Google Scholar.
5 For theoretical studies, see e.g. Lubman, S, Bird In Cage, Legal Reform in China After Mao, 174 (Stanford University Press, 1999)Google Scholar; 梁彗星, 《为中国民法典而斗争》, 法律出版社, 2002 年, 第 12 页( Huixing, Liang, Struggle For A Chinese Civil Code (2002) Falü Chubanshe (Legal Press) at 12 Google Scholar); 冉昊, “制定法对财产法的影响”, 《现代法学》2004 年, 第26 卷, 第5 期, 第13 页 ( Hao, Ran, “Impact of Statutes On Property Rights” (2004) vol.26 no.5 Google Scholar Xian Dai Fa Xue (Modern Law Science) at 13); See empirical studies at Pils, E, “Land Disputes, Rights Assertion, and Social Unrest In China: A Case From Sichuan” 19 Colum J Asian L 239 (2006)Google Scholar; Randolph P, “Property Seizures in China: Politics, Law and Protest”, Paper presented before the American Congressional-Executive Commission on China Issues Round Table, online: http://www.cecc.gov/pages/roundtables/062104/Randolph.php?PHPSESSID=e2adaed7709869ddca33fda57893181b (accessed 15 September 2006).
6 See 《中国共产党第十六次全国代表大会工作报告》, 2002 年11 月8 日(Report to the 16th National Congress of the Chinese Communist Party titled “Build a Well-off Society in an All-round Way and Create a New Situations in Building Socialism with Chinese Characteristics” (8 November 2002). English Translation online: http://english.people.com.cn/200211/18/eng20021118_106983.shtml (accessed 20 August 2006).
7 Such as General Principles of Civil Law of the People’s Republic of China (thereafter PRC) of 1986, Contract Law of PRC of 1999.
8 苗连营, “和谐社会的宪政之维”, 《法学评论》2006 年,第24 卷,第1 期,第10 页 ( Lianying, Miao, “Safeguarding Constitutionalism in a Harmonious Society” (2006) vol. 24 no. 1 Fa Xue Ping Lun (Wuhan University Law Review) at 10 Google Scholar). In this Article, Miao argued that ‘…the declarative property clause on the Constitution cannot resolve the problem of private property’s violation…the point is to establish a fair and just mechanism of interest balance between private property and public power…’; See also 王利明, “宪法与私有财产的保护”, 《法学杂志》2004 年, 第25 卷, 第2 期, 第9-12 页(Wang Liming, “The Constitution and The Protection of Private Property” (2004) vol. 25 no. 2 Xian Dai Fa Xue (Law Science Magazine) at 9-12).
9 The draft property code has been finally passed by the Fifth Plenary Session of 10th NPC on 16 March 2007. The new property code will come into effect on 1 October 2007. The main purpose of the draft is to define and specify property rights in detail and to improve the protection of private property rights. The final text of the property code consists of 5 sections, 19 chapters and totals 247 articles.
10 杨海坤, “论非公有制经济的宪法保护”,《法商研究》2004 年,第21 卷, 第2 期, 第30 页 (Yang Haikun, “The Constitutional Protection of Non-state-owned Property” (2004) vol. 24, no. 2 Fa Shang Yan Jiu (Studies in Law and Business) at 30). Yang highlighted that the non-public economy will continue to grow while the proportion of the state-owned economy relative to the national economy will inevitably decline.
11 According to the Statistical Report by China’s Ministry of Construction, by the end of 2005, the total construction area in urban China was 16.451 billion square meters. The area of residential condominiums is 10.769 billion square meters, which is 65.46% of the total construction area. Although the condominiums for industrial and commercial purposes and mixed-use condominiums are not specified and included in these statistics, it can be said that the condominium is the main type of tenure in China’s urban areas. The report issued by the Ministry of Construction (in Chinese) is available online: http://www.cin.gov.cn/statis/dt/2006070301.htm (accessed 26 October 2006).
12 王小霞, “物业纠纷激化呼唤制度革命”, 《中国经济时报》2005 年11 月23 日(Wang Xiaoxia, “The Intensifying Condominium Disputes Call For Institutional Revolution” Zhongguo Jingji Shibao (China Economic Times) 23 November 2005).
13 周文国, 韩国波, “我国物业管理存在的问题及对策思考”, 《建筑管理现代化》2004 年第 6 期, 第56 页(Zhou Wenguo & Han Guobo, “Problems and Counter-measures in Current Development of Chinese Property Management” (2004) no.6 Jian Zhu Guan Li Xian Dai Hua (Construction Management Modernization) at 56).
14 See the official report by the Department of the Grass-Root Work, Ministry of Justice of PRC, online: http://www.legalinfo.gov.cn/moj/jcgzzds/2006-04/03/content_293100.htm (accessed 01 September 2006).
15 杨立新, 《共有权研究》,高等教育出版社, 2004 年, 第350-351 页( Lixin, Yang, Study on Co-Ownership (2004) Gaodeng Jiaoyu Chubanshe (Higher Education Press) at 350–351)Google Scholar.
16 高富平,黄武双,《物业权属与物业管理》, 中国法制出版社, 2002 年第75-85 页 ( Fuping, Gao & Wushuang, Huang, Property Entitlement and Property Management (2002) Zhongguo Fazhi Chubanshe (China Legal Publishing House) at 75–85)Google Scholar.
17 《住宅共用部位共用设施设备维修基金管理办法》中华人民共和国建设部, 财政部发布 (建住房[1998]213 号) 第3 条, “……共有部位是指住宅主体承重结构部位(包括基础,内外承 重墙体,柱,梁…屋顶等……”. Measures on Management of Maintenance Fund for Fixtures and Fittings in Housing Common Areas issued by Ministry of Construction and Ministry of Finance of PRC (Jian Zhu Fang「1998」213) art.3 stipulates that “…the common areas include the building foundation, inner and outer bearing walls, pillars, girders and roof…”.
18 但淑华, “屋顶平台问题的法律分析” 《中国律师》, 2003 年11 月(Dan Shuhua, “Legal Analysis on Problem of Roof Garden” (November 2003) Zhongguo Lüshi (China Lawyer).
19 王利明, 《物权法研究》, 中国人民大学出版社2002 年第390 页( Liming, Wang, Study of the Law of Things Zhongguo Renmin Daxue Chubanshe (China People’s University Press) (2002) at 390)Google Scholar.
20 See 《深圳市业主大会和业主委员会指导规则》第40 条, 深府(2005) 11 号,深圳市人民 政府2005 年1 月17 日颁布(Guiding Rules on Management Corporation and Its Executive Council, Shen Fu (2005) 11, art. 40, issued by municipal government of Shenzhen City on 17 January 2005).
21 See“百名业主建议依法撤消‘物业管理规则’” 《南方日报》, 2005 年3 月30 日(“One Hundred Condominium Owners Suggest the Repeal of ‘Local Management Rule’” Nanfang Ribao (Southern Daily) 30 March 2005).
22 《大连市人民政府印发大连市关于私人投资、购买商品房户口迁入暂行办法>的通知》, 大 政发［2006］57 号,大连市人民政府2006 年6 月13 日颁布(“Circular Regarding Provisional Measures on Obtaining Municipal Domicile Residence In Dalian City by Private Investment and Buying Commercial Housing” Da Zheng Fa ［2006］57, issued by Dalian Municipality on 13 June 2006.
23 杨立新, “窗前绿地的权属争议及解决规则”, 《人民法院报》2004 年10 月19 日(Yang Lixin, “The Dispute on Entitlement of Green Spaces and Its Resolution” Renmin Fayuan Bao (People’s Court Newspaper) 19 October 2004).
24 王利明, Wang Liming, supra note 19 at 319; 杨立新, “停车位的权属争议及解决规则” (Yang Lixin, “The Entitlement Dispute on Parking Lots and Its Resolution”) online: http://www.civillaw.com.cn/weizhang/default.asp?id=18884 (accessed 27 August 2006).
25 These are sites specifically for property management purpose, such as the security guard room and the meeting hall for the annual general meeting of the management body.
26 Article 76, sec. 2 of the draft of the property code (published on 10 July 2005 by National People’s Congress) states that condominium parking places are jointly owned by the owners if no agreement is made or the agreement is ambiguous about its entitlement. When it comes to an agreement, the parking places should be entitled pursuant to the agreement. This provision is eventually not incorporated into the final text of the new property code.
27 Problems with the allocation of parking spaces seem to be a common problem in undeveloped condominium law. In South Africa, for instance, first generation condominium legislation (the Sectional Titles Act 95 of 1971) did not regulate the position in respect of parking spaces and other common areas maintained by the developer. This resulted in malpractices by unscrupulous developers, such as the selling or letting of parking spaces to persons outside the schemes in which such parking spaces were located. This seriously impaired the proper functioning of sectional title schemes, since the harmony within the sectional title communities were jeopardized. The situation was rectified in the second round of legislation (the Sectional Titles Act 95 of 1986), and revised several times thereafter by means of legislative amendment. Now the South African sectional title law does not permit developers or any sectional owners to alienate exclusive use areas such as parking spaces to outsiders any more. See Van der Merwe, C.G., Sectional Titles, (loose-leaf) Vol. 1 Ch.11-20 (first published in 1996, Butterworths)Google Scholar; Mostert, H., “The Regulation of Exclusive Use Areas in terms of the Sectional Titles Act 95 of 1986: An Evaluation of the Existing Position and Suggested Alternatives” (1997) 3 Stellenbosch Law Review at 324–347 Google Scholar.
28 Owners of residential condominium apartments in Hawaii have a statutory right to own, or to have designated, parking places which are legally appurtenant to their respective apartments. See Hawaii Revised Statutes (HRS) § 514 A -14.5.
29 See Poliakoff, G, The Law of Condominium Operations § 4:65, loose-leaf, (updated September 2006, West Group)Google Scholar.
30 See Baker, M, “Structuring The Condominium Parking Lot”, Current Issues In Condominium Law, at 1–2 (Canadian Bar Association-Ontario ed. 1990)Google Scholar.
31 Khublall N, supra note 1 at 170; Freedman, W & Alter, J, The Law of Condominia and Property Owners’ Associations at 118 (Quorum Books, 1992)Google Scholar.
32 This term is the direct translation of the Chinese literature,“异产毗邻房屋”, Yichan Pilin Fangwu. In essence, it makes sense as “Neighborhood rights” or “shares of co-ownership”, equivalent to, more or less the American system of “Easement by Necessity”. See Randolph, P & Jianbo, Lou, Chinese Real Estate Law, 47 (Kluwer Law International, 2000)Google Scholar.
33 陈华彬,《现代建筑物区分所有权制度研究》1995 年, 法律出版社, 第306 页( Huabin, Chen, Study On Institution of Modern Condominium Ownership (1995) Falü Chubanshe (Law Press) at 306)Google Scholar.
34 I.e. 建筑区分所有权(Jianzhu Qufen Suoyouquan). This term is directly taken from the Japanese Legislative literature.
35 陈华彬Chen Huabin, supra note 33 at 311.
36 胡志刚, 《不动产物权新论》, 学林出版社, 2006 年, 第234-235 页( Zhigang, Hu, New Research On Real Estate Law (2006) Xuelin Chubanshe (Xuelin Press) at 234–235 Google Scholar). Hu argues that the title of the compartment building ownership which is transplanted from Japanese legal literature firstly, does not make sense to the Chinese general public since it is too long and strange when translated into Chinese; secondly, that title literally, pays a special attention to an abstract building rather than concrete condominium units. Thus, Hu suggests changing this term to high-rise ownership, 大厦所有权(Dasha Suoyouquan). Integrating the two points of view, it might be named “condominium ownership”, 公寓所有权, Gongyu Suoyouquan.
37 Among others, 《中华人民共和国民法通则》1986 年颁布(General Principles on the Civil Law of the PRC of 1986), 《中华人民共和国合同法》1999 年颁布(Law of Contracts of the PRC of 1999).
38 For example, 《中华人民共和国城镇土地出让转让暂行条例》,国务院1990 年颁布, Zhonghua Renmin Gongheguo Chengzhen Tudi Churang Zhuanrang Zanxing Tiaoli (Interim Regulation on Granting and Transferring of Land Use Rights of State Owned Urban Land of 1990) by State Council; and 《城市私有房屋管理条例》,国务院1982 年颁布, Chengshi Siyou Fangwu Guanli Tiaoli (Regulations on the Administration of Urban Private-Owned Buildings) of 1982 by State Council of PRC.
39 《城市房屋权属登记管理办法》，建设部1997 年颁布, Chengshi Fangwu Quanshu Dengji Guanli Banfa. (Measures governing the Registration of Title of Urban Buildings of 1997, issued by the Ministry of Construction of PRC).
40 For example, 《北京市房地产开发经营程序及相关税费》，北京市人民政府1995 年颁布, Beijingshi Fangdichan Kaifa Jingying Chengxu Ji Xiangguan Shuifei (Procedures and Related Taxes and Fees Concerning Real Estate Development and Operation in the City of Beijing) of 1995 issued by the Beijing Municipality; and《上海房地产抵押办法》，上海市人民政府1994 年颁布Shanghai Fangdichan Diya Banfa (Shanghai Municipality Real Property Mortgage Measures) of 1994 issued by the Shanghai municipality; 《广东省物业管理条例》，广东省人民 代表大会1998 颁布, Guangdong Sheng Wuye Guanli Tiaoli (Rules on Condominium Property Management of Guangdong Province) of 1998 issued by the Guangdong Provincial People’s Congress.
41 《城市异产毗邻房屋管理规定》, 建设部1989 年颁布,2001 年修改, Chengshi Yichan Pilin Fangwu Guanli Guiding (Measures Governing The Management Of Urban Adjacent Housings) of 1989 (amended in 2001) issued by the Ministry of Construction of PRC.
42 《青岛市住宅小区物业管理试行办法》，青岛市人民政府1994 年颁布, Qingdaoshi Zhuzha Xiaoqu Wuye Guanli Shixing Banfa (Provisional Measures on Condominium Management in Residential Districts of Qingdao City) of 1994 issued by the Qingdao municipality.
43 《物业管理条例》, 国务院2003 年颁布, Wuye Guanli Tiaoli (Regulation on Property Management) of 2003 by the State Council. However, this regulation was heavily criticized immediately after its genesis. The main point is that its provisions are very skeletal and cover little detail about day-to-day management practices. Another criticism is that this regulation pays much attention about its administrative nature and says little about the property aspect of condominium management such as the entitlement to parking lots.
44 Most of the regulations that are partially concerned with Condominium are provisions that focus on the management aspects of condominium buildings. There are very few provisions, if any, whether at the national level or at the local level that cover other important aspects of condominium law, such as the duties and obligations of condominium owners as well as theoretical structure of condominiums and sanctions for non-compliance.
45 胡杰丰, “ 对我国地方物业管理立法的反思” (Hu Jiefeng, “Thoughts On Local Condominium Property Management Rules”, online: http://www.chinalawedu.com/news/21602/2800/33/2005/2/ma264849341525002119856_158840.htm (accessed 25 June 2006).
46 杨立新 Yang Lixin, supra note 15 at 350-351.
47 金俭, 《中国住宅法研究》, 法律出版社2004 年, 第7 页( Jian, Jin, Housing Law of China (2004) Falü Chubanshe (Law press) at 7 Google Scholar); 陈甦, “论建筑物所有权”,《法学研究》1990 年, 第5 期, 第47 页(Chen Su, “Study on Condominium Ownership”, (1990) no.5 Faxue Yanjiu (Legal Studies) at 47); 陈华彬 Chen Huabin, supra note 33 at 399.
48 胡志刚 Hu Zhigang, supra note 36 at 258.
49 易宪容, “房地产开发商与地方政府助推高房价” Fangdichan Kaifashang Yu Difang Zhengfu Zhutui Gao Fangjia) (Yi Xianrong, “The Developers and Local Governments Jointly Stimulate The High Price of Real Estate In China”, Xinhua News), online: http://news.xinhuanet.com/house/2005-12/27/content_3973834.htm (accessed 28 August 2006). Also see, 黄玫,何丰伦, “警惕地方政府对房地产调空政策‘拆招卸力’” Jingti Difang Zhengfu Dui Fangdichan Tiaokong Zhengce Chaizhaoxieli (Huang Mei & He Fenglun, “Be Cautious - Local Governments’ Circumvention Response to the Central Government’s New Controlling Policy On Real Estate Market”, Xinhua News), online: http://news.xinhuanet.com/house/2006-08/22/content_4990916.htm (accessed 28 September 2006).
50 刘保玉, “所有权的类型化与平等保护原则的结合ZZ物权法所有权编的基本结构设计思路”, 《法学评论》2005 年第23 卷第97 页(Liu Baoyü, “Combination of The Categorization of Ownership and The Principle of Equal Protection - A Basic thought on framework of Ownership chapter of proposed property code”, (2005) vol. 23 Faxue Pinglun (Wuhan University Law Review) at 97). Liu states that the subject of state owned property is ambiguous and therefore Constitutional law should distinguish ownership between the central government and the local government in order to resolve the practical problems involved. 温克坚, “房地产迷雾中的地方 政府” (Wen Kejian, “Local Government In the Nebulous Real Estate Market”), online: http://www.bowenpress.com/cn/2006/comment/24_1.shtml (accessed 29 August 2006).
51 胡志刚Hu Zhigang, supra note 36 at 246. In his book, Hu rightly highlights that condominiums should avoid the “anarchic” tendency in terms of their operation, which means the government should participate actively and intensively in the institutionalization of condominiums. He emphasizes the importance of public participation of government at the local level, particularly the Residents Committee, 居民委员会(Jumin Weiyuanhui) in formalizing condominiums.
52 Mainly but not exclusively, the representative works on condominium in China include 陈甦 Chen Su, supra note 47; 陈华彬Chen Huabin, supra note 33; 王利明Wang Liming, supra note 19; 杨立新Yang Lixin, supra note 15; 高富平,黄武双Gao Fuping & Huang Wushuang, supra note 16.
53 陈甦Chen Su, supra note 47 at 47-48.
54 陈华彬Chen Huabin, supra note 33 at 80-81; 高富平,黄武双Gao Fuping & Huang Wushuang, supra note 16 at 30-32.
55 Van der Merwe C G, supra note 1 at 23.
56 For Switzerland, see Swiss Civil Code art. 712a; for the Netherlands, see the New Dutch Civil Code, art. 5:106 para. 3.
57 For Poland, see Van der Merwe, CG & Habdas, M, “Polish Apartment Ownership Compared With South African Sectional Titles”, (2006) 1 Stellenbosch Law Review at 166–167 Google Scholar.
58 Van der Merwe C G., supra note 1 at 24; also see Badenhorst, P. et al., Silberberg and Schoeman’s The Law of Property at 414–417, (4th ed., Butterworths, 2003)Google Scholar.
59 See the academic analysis of Poliakoff G, supra note 29 at § 1. The empirical analysis can be seen in Mazun, I, Condo Associations — New Cop On The Beat: Martinez v Woodmar IV Condominium Homeowners Association, (1999) 73 St John’s L Rev at 325 Google Scholar; Canada, see Rosenberg A, Condominium In Canada, (loose-leaf), at no. 704 (first published in 1969).
60 Van der Merwe CG, supra note 27 at Ch. 2-10.
61 See, e.g. the new Botswana Sectional Titles Act, which is an almost exact copy of the South African legislation.
62 Clarke D, supra note 1 at 10-11.
63 For Austria, see Wohnungseigentumsgesetz (Federal Law on ownership of condominiums and other premises) of 1 July 1975 (as amended); for Spain, see Ley no.49 sobre propiedad horizontal (Law no.49 on Horizontal Property) of 21 July, 1960 (as amended).
64 陈华彬Chen Huabin, supra note 33 at 240-243. Chen argues that “…as to legal structure of management body, it is better to be circumspect, not adopting the ‘legal person’ model at this stage, because the concept of legal personality of the management body will not fit China’s with current Chinese special circumstances…”.
65 夏善胜, 《物业管理法》, 法律出版社, 2003 年, 第20 页( Shansheng, Xia, Property Management Law (2003) Falü Chubanshe (Law Press) at 20 Google Scholar); See 高富平，黄武双Gao Fuping & Huang Wushuang, supra note 16 at 120.
66 For France, see Law no. 65-557 (as amended) establishing the statute on apartment ownership of buildings of 1965, art. 14; for the Netherlands: New Civil Code of 1992 (as amended), art 5:112 par. 3.
67 For the United States, see the Uniform Condominium Act of 1977 (Amended 1980) § 3-101.
68 The Land Titles (Strata) Act 41 of 1967 (Singapore) (as amended by Land Titles (Strata) (Amendment) Act of 1999), sec. 33 (1) (2), s. 36; and the Sectional Titles Act 95 of 1986 (South Africa) (as amended), sec. 36 (3), (4), (5), (6), s. 47 (1).
69 Moriarty, M., “A Comparison of United States and Foreign Condominiums”, (1974) 48 St John’s Law Review 1025 Google Scholar.
70 Van der Merwe CG, supra note 1 at 11.
71 See e.g. the new Sectional Title Act of Botswana.
72 Among others, 梁彗星, 《中国物权法草案建议稿》, 中国社会文献出版社, 1999 年 (Liang Huixing, Chinese Property Law Draft, (1999) Zhongguo Shehui Wenxian Chubanshe (China Societal Literature Press); 王利明Wang Liming, supra note 19; Chen Huabin, supra note 33.
73 Germany, WEG of 15, March, 1951, S. 5 par. 2 maintains that components of a building necessary for its existence and stability can never constitute a component of an apartment even if it is situated within its boundaries; See also Portuguese Civil Code art. 1421 par. 1 & 2 and the Uniform Condominium Act of the US of 1980, § 1-103(4).
74 The Sectional Titles Act 95 of 1986 (South Africa), sec. 28 (1) & sec. 44 (1) d.
75 For France, see Law no. 65-557 establishing the statute on apartment ownership of buildings of 1965, art.3.
76 Van der Merwe, supra note 27 at ch.15-14&15.
77 For example, Building Maintenance and Strata Management Act (BMSMA) Act 47 of 2004 of Singapore, sec. 19 (1) states: “If the Commissioner is satisfied that…the Commissioner may… appoint one or more persons as a managing agent to manage and maintain…”
78 See, Poliakoff, G., supra note 29 at § 1:35, for example, Building Maintenance and Strata Management Act (BMSMA) Act 47 of 2004 of Singapore Section 67; Ill Comp Stat Ann § 765-605/18.4(e).
79 The Uniform Condominium Act of 1977 (Amended in 1980) (United States) §3-102 (a) (3); see Van der Merwe C G, supra note 27 at ch.15-14.
80 The Uniform Condominium Act of United States §3-106 (a) (4); Khublall N, supra note 1 at 136-137.
81 《上海市公有住宅售后管理暂行办法》第22 条, 1994 年颁布. Shanghaishi Gongyou Zhuzhai Shouhou Guanli Zanxing Banfa. (Provisional Measures governing post-privatized public housing management of Shanghai) of 1994, art. 22.
82 In 2001, Provisional Measures Governing the Post-privatized Public Housing Management of Shanghai was repealed by the Shanghai Municipality. However, the effectiveness of the new norm remains to be seen.
83 See e.g. 《山东省公有住宅售后维修养护管理暂行办法》第12 条和第13 条, 1998 年颁布 Shandong Sheng Gongyou Zhuzhai Shouhou Weixiu Yanghu Guanli Zanxing Banfa (Provisional Measures governing post-privatized public housing management and maintenance of Shandong Province) of 1998, art.12 & 13.
84 See 高富平，黄武双Gao Fuping & Huang Wushuang, supra note 16 at 131-137.
85 Although the Regulation on Property Management was established in 2003 at the national level, it is safe to say that before and even after that regulation, the disputes regarding condominium management are still main sources of litigation in China.
86 Also named as Pre-formation of the Management Corporation in other jurisdictions like Singapore, see Khublall N, supra note 1 at Ch. 4.
87 See an official report published by Chaoyang District Court of Beijing at China’s Court Web, “如何解决物业管理纠纷” (“How To Resolve the Property Management Disputes”). In this paper, the abnormal relationship between the developer and managing agent is vividly described as the relationship between a father and a son, online: http://www.chinacourt.org/public/detail.php?id=203645 (accessed 1 October 2006).
88 Drobak, J & North, D, “Legal Change in Economic Analysis” in Backhaus, J Ed. The Elgar Companion To Law and Economics, (Edward Elgar publishing, 2005)Google Scholar; Demsetz, H, “The Exchange and Enforcement of Property Rights”, (1964) 3 J L & Econ at 11–26 CrossRefGoogle Scholar.
89 See supra note 87. According to this district court report, the number of cases involving condominium management disputes in Chaoyang Court of Beijing increased from 194 in 2002 to 2649 in 2005. In three years, the condominium cases went up about thirteen times as much as in 2002. The percentage of condominium cases among all civil cases increased as well from 0.79% in 2002 to 8.5% in 2005 within Chaoyang Court’s jurisdiction.
90 See Van der Merwe C G, supra note 3 at 191-192.
91 See Walker, A & McKinnell, K, “Economic Reform and the Future For Real Estate In the People's Republic of China”, (2004) 13 Chinese Journal of Property Valuation and Investment 5 at 40 Google Scholar.
92 Randolph P., “Thoughts on Chinese Real Estate Law: Integrating Private Property Into a Socialist Governmental Structure”, online: http://law.usc.edu/faculty/assets/docs/Randolph_000.pdf#search=%22why%20mortgage%20security%20as%20a%20primary%20source%20of%20financing%20of%20condominium%20ownership%22 (accessed 22 August 2006).
93 金俭Jin Jian, supra note 47 at 223.
94 梁治平, 《法律的文化解释》(修订版) 2002 年, 三联书店(Liang Zhiping, “Cultural Interpretation of Law” (revised version), (2002) SDX Joint Publishing Company); 周永坤, “论中国法的现代性十大困境” 《法学》月刊, 2006 年第6 期, 第77 页(Zhou Yongkun, “Ten Dilemmas of the Modernity of Chinese Law”, Faxue Yuekan (Legal Science Monthly), (2006) at 77).
95 The term of “bricolage” was coined by anthropologist Claude Levi-Strass and means borrowing from what is readily at hand. See Levi-Strass, C., The Savage Mind, 17–36 (1966)Google Scholar. In a legal context, recently, Mark Tushnet applied this term as a comparative approach by analyzing constitutional law. In his analysis, the concept between functionalism and the Bricolage approach is scrupulously distinguished in a constitutional law context. See Tushnet, M., Comparative Constitutional Law, (1999) 108 Yale L J at 1286 CrossRefGoogle Scholar. However, in this paper, the two are integrated and the term of bricolage functionalism is employed.
96 Barton, J. et al., Law in Radically Different Cultures at 12 (West Group, 1983)Google Scholar.
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102 The sub-rule for the dispute resolution in China is mainly dealt with by means of local political power structures, 公权力的地方特色(Gong Quan Li De Di Fang Te Se) and social networks, 人际关系(Ren Ji Guan Xi).
103 Ruscola rigorously advocated the ethics of orientalism to allow different kinds of legal subjects to emerge. See Ruscola T, Legal Orientalism, supra note 98. Baxi also made much the same kind of argument that the ‘epistemological break’ with old comparative law is needed, see Baxi, U., “The Colonist Heritage” in Legrand, P and Munday, R eds. Comparative Legal Studies: Traditions And Transitions at 50 (Cambridge University Press, 2003)Google Scholar.
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107 See Condominium Act, 1998, S.O. 1998, c. 19 of Ontario, Canada, s. 51 (2).
108 This term refers to the numerical quantification of a condominium owner’s share in the common property, and determines the extent of a condominium owner’s financial obligations for administration and maintenance costs. Badenhorst P. et al., supra note 58 at 430. It is also called the Share Value (Singapore), Percentage of Ownership Interest (Nova Scotia, Canada), Unit Entitlement (British Columbia, Canada). The voting weight is made on the basis of participation quota in some jurisdictions such as Land Titles (Strata) Act of Singapore s. 30(2) (a).
109 Van der Merwe C G, supra note 27 at ch. 4-18 & 19.
110 This is especially true in high rise buildings where some small-sized condominium units are privately commercialized by virtue of the Housing Reform Policy and other large-sized units are still social housing, i.e. the residents pay relatively low rent to the local government.
111 A more equitable approach can be adopted in the future when the general public understands the condominium concept and concomitant management knowledge.
112 It is notable that the provision as to adoption of voting rights can be conceived and settled differently in the declaration or plan by developers under different circumstances.
113 Peerenboom R argues that although there are numerous obstacles, including the inadequacy of institutions, the authoritarian one-party polity, China can make the somewhat “thin” form of rule of law inevitable. See Peerenboom, R, China’s Long March Towards Rule of Law (Cambridge University Press, 2002)CrossRefGoogle Scholar.
114 Badenhorst P. et al., supra note 58 at 464-465.
115 Ibid at 425.
116 陈华彬Chen Huabin, supra note 33 at 25-41.
117 The expert opinion on drafting housing law is already published. See 金俭Jin Jian, supra note 47. However, whether housing law or condominium law should be formalized first still remains a question although the two proposed draft laws overlap to a great extent.
118 Huang, Frank Xianfeng, “The Path to Clarity: Development of Property Rights In China”, 17 Colum. J. Asian L. 191 (2004)Google Scholar.
