Civil Code... Interpretation of the key changes in the property rights of the Civil Code.
Published:
2020-07-22
On May 28, 2020, the Third Session of the Thirteenth National People's Congress voted to adopt the the People's Republic of China Civil Code (hereinafter referred to as the Civil Code), which is the first law named after a code in New China, creating a milestone in the codification of legislation in China. There are 1260 articles in the whole article. As the first law named after "code" in China, the civil code plays an important role in the socialist legal system with Chinese characteristics.
Compared with the the People's Republic of China Property Law, the Civil Code further improves the relevant systems on the basis of the current property law. First, it appropriately reduces the voting calculation base for matters jointly decided by the owners, and excludes the use of maintenance funds for buildings and their ancillary facilities from special procedures, thus improving the efficiency of decision-making. Two matters jointly decided by the owners have been added, and the rights of the owners have been partially expanded; the second is the addition of the "right of residence" as a usufructuary right; the third is the change of the determination point of the floating mortgage property; the fourth is the change of the transfer rules of the mortgaged property during the mortgage period; and the fifth is the increase of the legal provisions on the competition of the mortgage right and the right of the right.
Change 1:(1) the addition of two matters jointly decided by the owners;(2) the expansion of the owner's right to formulate and amend the management agreement;(3) the use of the maintenance funds of the building and its ancillary facilities is excluded from the special procedures;(4) reduce the voting calculation base and pay more attention to efficiency.
Change interpretation: Before the promulgation of the Civil Code, owners could only formulate and modify the management statutes of buildings and their ancillary facilities. The Civil Code removed the prefix of "management statutes" and expanded the scope of owners' management statutes. In addition, the exclusion of the use of funds for the maintenance of buildings and their ancillary facilities from special procedures has increased the flexibility of decision-making. In real life, the matters jointly decided by the owners are generally difficult to implement, while the matters specially decided are more difficult to realize because of the high voting proportion. With the passage of time, more and more matters will require the use of maintenance funds, so it is of great practical significance to exclude the use of maintenance funds for buildings and their ancillary facilities from the special procedures.
This is an example to illustrate that for special matters of joint decision, the original regulation requires "the consent of the owners whose exclusive part accounts for more than 2/3 of the total area of the building and more than 2/3 of the total number of owners", that is to say, the consent ratio must reach 2/3 of the total area of the exclusive part and more than 2/3 of the total number of owners; it is now stipulated that for special joint decisions, it is required that "the owners with more than 2/3 of the area of the exclusive part and the owners with more than 2/3 of the total number of owners should participate in the voting" and "the owners with more than 3/4 of the area of the exclusive part and" the owners with more than 3/4 of the number of owners participating in the voting "2/3 participate in the voting, and the 3/4 agree, that is to say, the agreed proportion shall reach the 1/2 of the total area of the exclusive part and the number of owners shall reach the 1/2 of the total number of owners.
Change 2: Articles 366 to 371 of the Civil Code add "right of residence".
Interpretation of changes: According to the regulations, the right of residence has the right to possess and use the usufructuary right to the residence of others in accordance with the contract to meet the needs of life and residence; in addition, the establishment of the right of residence should be in written form and apply to the registration agency for the right of residence Registration, the right of residence is established at the time of registration, and in principle it is established free of charge. At the same time, the right of residence may not be transferred or inherited.
Through the establishment of the right of residence, the housing problem of the weak party can be guaranteed to a certain extent. Because the right of residence needs to be registered, in the future, when buying and selling houses, in addition to clarifying whether there is a property right dispute and the burden of rights such as mortgage and seizure, attention should also be paid to whether there is a right of residence registration.
Change three: floating mortgage property to determine the point of change.
Change Interpretation: This change moves the determination of the mortgaged property forward, which is conducive to the protection of the rights and interests of the mortgagee. Creditors should pay attention to the performance of the debt, the mortgagee, the state of the mortgaged property, and avoid the loss of the mortgaged property during the period of the realization of the mortgage right after the mortgage property is determined. In the event of the determination of the mortgaged property, the scope and value of the mortgaged property shall be confirmed with the debtor and the mortgagor in a timely manner, and the mortgage shall be realized in a timely manner.
Change 4:(1) the mortgagor transfers the mortgaged property, only the obligation to notify, without the consent of the mortgagee;(2) increases the mortgagee's obligation to prove.
Change interpretation: This change is conducive to improving transaction efficiency and reducing transaction costs. During the mortgage period, if the mortgagor needs to transfer the mortgaged property, it can be transferred by notifying the mortgagee in time. For the mortgagee, it is important to pay close attention to the state of the collateral and thus measure whether the transfer of the mortgaged property will impair the mortgage. For the buyer of the collateral, it should be verified that there is a mortgage on the transferred property before the transfer, and the case should be considered.
Change 5:(1) increase the legal provisions for the concurrence of mortgages and pledges;(2) mortgages no longer have absolute priority over pledges.
Change interpretation: This provision facilitates equal protection of mortgages and pledges. In the future, before creating a mortgage, the mortgagee will have to verify both whether there is a previously registered mortgage on the mortgage and whether the mortgage has a previously created pledge.
Conclusion: Compared with the current laws and regulations, the Civil Code has changed a lot. In view of the space, this article only extracts a few obvious changes and expects more colleagues to share them.
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