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1、The compensation concerning the submerged parking garageAn HongAbstract: Clearly defined responsibilities is of the essence of compensation when confront on the personal or property damage or the compensation dispute. While in the property law, there is not definite proscribe related to the division

2、 of ownership of parking lots and of course, it is hard to determine the person responsible. Our country should make a clear rule in the government policy concerning the parking garage construction, the proprietary of parking lot and the realty management. And ultimately ensure the power of manageme

3、nt to the building implement by the owers.Key word: parking garage Condominium Ownership of the ResidentialBuilding Property law1. Guangzhou rainstorm flooded garage to the owners a disaster. Insurance could not satisfy the victims damages; they instituted legal proceedings in succession. In the ear

4、ly 2010, the southeast of China experience many torrential rain .It brings great losses of personal injury and property damage .Especially in lstTen-daysofMay, Guangzhou suffered several rainstorms, and many parking garages had been submerged after the downpour stopped and almost turned into reservo

5、ir. Many automobiles were inundated according to the rough statistics of Guangzhou Water Conservancy Bureau,there are 89 increasedwater-logged regions, and among 44 had been inundated seriously which all underground garage had been submerged entirely. More than two thousand automobiles had been dama

6、ged and sludge and sewage covered over and in the cars. immersed in the water for more than 50 hours,circuit fixtures ,trim fixtures and even engines were damaged .some automobiles once start engine after they were been pulled out ,scuffing of cylinder bore may been effected .In those days, many own

7、ers of impaired automobiles institute legal proceedings to their estate management enterprise or managements of the parking garages. If the owners did not conduct all-pay insurance, they cant be fully recovered by insurance companies. And if they start car engine before inform the insurance company,

8、 they couldnt gain the damages for that the damage for not caused by natural rainstorm but by their twice personal destruction. For these tortious cases, the harm to losses owners suffered are inevitable. So undertake the liability to those damage is still a legal problem.2. Instruction of the legis

9、lation in China concerning the parking garages in property law.2.1 The specific legal rules of underground parking garage in China and several other countries. It is always the disputed focus point of legislation for the problem of whom the parking places and garages should vest in. According to art

10、icle 74 of property law, The parking places and garages within the building area planned for parking cars shall be used to meet the needs of the owners above all else. The ownership of the parking places and garages shall be agreed upon by the related parties in the manners of selling, complementary

11、 using or leasing, etc. The parking places, which occupy the roads or other fields commonly owned by all owners, shall be in the common ownership of all the owners. This rule puts under-parking garage and stand-alone developed parking lot belonging to the property developers, and then owners possess

12、 parking places which occupying common road or other field. Therefore, for the injury caused by inundated garage, the developers are liable. However,in American and France,the parking garage and parking lot are owned by the owners of residences. In Germany,parking lots are setting as exclusivepart,a

13、nd marked the ranges with sustaining landmark. Yang Lixin “The supreme peoples court building differentiation ownership dispute case, understand and apply the judicial interpretation,” the Due Process of Lawful,105-106 (2007).These countries prescribe parking garages owned by the proprietors, and of

14、 course, the owners should solve the problems themselves which search for insurance companies to gain the damages or undertake the results themselves if they didnt join insurance.2.2 The analysis about the judicial interpretation concerning the underground parking garages reflects some problems and

15、then reflects the problem of hardness in compensation. On the contrary, in China, the responsibility could be divided into three parties for the special proprietary institutions. First, according to Interpretation of Several Issues Concerning the Specific Application of the Law in Disputes over the

16、Division of Ownership of Buildings Article 5 “If the developer disposes of parking spaces orparking garages to the owners proportional to the allocation ratio by way of sale, inclusion with the premises, or lease, its act shall be deemed to comply with the provision on “satisfying the requirements o

17、f the owners on a priority basis” of the first paragraph ofArticle 74 of the Property Law.” Therefore, developers possess the parking garages and then, they should undertake the proprietaryresponsibility .Next, estate managements assume the obligation to repair and manage facilities of the building

18、and they naturally should bear the duty to make compensation to the injuries for theiromission according to the contracts or regulations. Though in this case, for some managers, there are not fully accounts or definite and binding rules to do the responsibility. The last, the government are should r

19、esponsible to the injury for the system of draining off water even they may not pay the real damages.This institution what we are confronting with exists defects obviously. What called the Divisionof Ownershipof Buildingsdifferentiated the articles belonging but it also take the specific liability i

20、nto misty. Faced with these disputes, it is difficult to make a satisfied solution as the ambiguous duty taker and the amount of damages. That is what we are taking into consideration for what related to the citizens interests closely. Then we should talk about some circumstance about the how the pa

21、rking garages are owned by the master of the automobile. For the owner of the building, they obtain the fields though selling, leasing complementary by developers on the requirement of “be used to meet the needs of the owners above all else.” Another part are sealed, leased or complemented to reside

22、nts outside of the building by developers with in the related parties or by owners with in the related pretest, out of related parties or the increased parties. In these cases, for the injuries, whether they could been gained the same treatment.For the parking garage could gain through convention by

23、 paid or free. Certainly these parts could transfer through contract and the gainer could own the garage by many ways such as buying, renting or complement and so on. While some details should be notice: when the owner obtaining the property, some necessary management burden is also inevitable. Howe

24、ver, when the transfer of the right of use has happen, the obligee need not pay the expense of management for the owner should undertake the obligation of maintenance to the lease. While between the lure of the benefit, it is uncertain that whether the develop enterprise could equal and base on conv

25、iction to solve the problem of property or use about parking garages. On one hand, develop corporation construct the parking garages the capital retrieving and appropriate profit should be gain, on the other hand, owners basement requirement also should be taken into consideration. And for the two p

26、arties conviction, whether it is selling, leasing or compensation, the otherness between their control force, economy strength and professional experience should be noticed, and should give consideration to the owners interest, so as to protect equality and availability among these contracts. Chen x

27、ingu, “The Division of Ownership of Buildings,” China Legal Publishing House, 36-37 (2007).To the realty manger, focus on the loss, owners usually blamed the managers omission, or sue them as they disable to discharge the contract for damage. This where, realty management shall refer to the activiti

28、es of maintenance, conservation, and management of the houses and supporting facilities, as well as the relevant sites, and protection of the environmental sanitation and order within the relevant areas carried out by the owners and the realty management enterprise selected by the owners, pursuant t

29、o the stipulations of the realty service contract. Before the selling of the building or after the end of selling , a construction entity orowners committee conclude a convention with realty management enterprise to stipulate, according to law, the use, maintenance and management of the relevant rea

30、lty, the common interests of the owners, the obligations of the owners, and the liabilities for breach of the convention, etc. Therefore, realty management enterprise should pay the debt of the damages as the convention of contract for they did not try there best to protect the owners interest. Two

31、phases are divided about the realty management of management enterprise: the first is prophase realty management; in other words, it is the realty management during the period after the building selling and owner residing, before the owners committee employ the realty management enterprise. The othe

32、r is the period during the owners committee employ the realty management enterprise. Ditto 156. Among them there is a vital problem which the right of management from construction corporation to the owners. Therefore, face to the injury, the manager should undertake different responsibility in diffe

33、rent period. During the first periods, the construction corporation should be responsible for the injury for their problem of construction quality or management omission entirely. While during the second period, to the important project construction or facilities reparation, the realty management en

34、terprise should reach consensus to the service proceeding, and then submit to senior authorities for examination and approval. So in these situation, if the management corporation has offered a proposal to the sewer of parking garage, while have not come to terms, then to the damage, the owners also

35、 should undertake some duty. For where the realty has any hidden risk that endangers the public interests or the legitimate rights and interests of others, the responsible party shall make timely repair and maintenance, and the relevant owners shall render assistance. Though for those parking garage

36、s repairing and maintaining the realty management enterprise hold the responsibility, while it builds on the premise of owners congress agreement. Then face on this situation, if owners congress did not agree the reparation of under-parking garage conduits due to the high expense, the realty managem

37、ent enterprise should pay for those no-omission liability? Or this rainbow is unpredictable, the managers also liable? Another, the result of submerged automobiles is owing to the citys dewatering in some extent, why should realty management enterprise pay the damages for government. In conclusion,

38、in this building property pattern, it is hard to distribute the duty. 3. Compare to other countrys practice, we should standardize the duty of parking garages definitely in law.3.1 Many countries practices to the allocation of responsibilities in the region of ownership of property is merit our refe

39、rence.Many countries have different characteristics to the division of ownership of Buildings concerning parking garage.In Japan, when corporation sells apartment house, they achieve the right of management to this house yet, including the parking garage. While in most occasion, these disputes are r

40、esult of the ownership of parking garage. Consequently, the court put the parking garage belonging to the proprietary part and they have the independence in construction and use. For the common part, owner also has the exclusive right to use it in the specific profitable extent. (Japan)Wanshanyingqi

41、, “The recent trends in divisible of ownership,” The problems of modern legal practiced, Japans lawyers association (1990), pp.279. In America, usually, develop enterprise transfer the possession of parking garage to management organization as common parts. And then the management organization lease

42、 the realty to residence based on the standard of monthly or yearly. Of course, owners have the priority. (Japan)Daobenyangzhizhu, “Inspection of apartment management,” QingWenShe, 98 (1993).In France, according to the city-planning law, during the constructing, architect has the liability to design

43、 a zone to parking for every inhabitant. Ditto 14.In Germany law, the quality of parking garages is fictioed as exclusive parts once it marks boundary with landmark. Zhuang Jingchang, “Comparative study of ownership of residential stratification,” 27(1984).In Canada, the standard of quantity institu

44、tion about the design of parking lot is typical. The standard is that to all owners, setting one carport for the owner who owned two bed-rooms, and setting two for the owner who owned three or above bed-rooms. (Japan)Daobenyangzhizhu, “Inspection of apartment management,” QingWenShe, 111 (1993).3.2

45、Thorough those practice and compare our country national condition, the writer offer some proposals to solve the problem of liability of damage.Some countries ruled ordinance in this field through city-planning law, construction standard law, register regulation of division ownership of building, or

46、 management regulation. Only in Germany, there are definitely prescribe about division ownership. Compare and measure the legislation, theory or judgment practice of parking garages problems in various countries or regions. Combine our countrys practice situation, it may be better that our legislatu

47、re use other countrys experience for reference when enacting law. In detail, 1. Using the method of Germany law, take the problems of ownership in the parking are expressly on the method. 2. Using method of Japanese law, explain the parking lots problems with the jurisprudence of usufractuary. 3. Us

48、ing the method of America, distribute the parking garage according to the living-room unite of division owner, even then take it into the proprietary use right to the owners.Aiming at our countrys condition, and unite the case of destroyed automobile in Guangzhou, I consider that it is unreasonable

49、put the liable of paying the damages entrust to the care of insurance company during the situation which natural disaster happening more and more. Consider the social order and social interest, it is necessary to solve the dispute from the legislation, and develop the citys environment at the same t

50、ime. Our government could make policy in origin, specifically, make a policy while the develop enterprise were gain the land to construct. The rule is that the obligation to repair the drain-pipe around the constructed building in settled scale and the demand is the repair should meet the design of

51、government so as to the system of drain off water of the whole city could linked to a integrated structure. If the demand could be satisfied, the develop corporation may acquire a relative loose restrict to construct the building. Then the city also solves the problem of obsolescence and block sewer

52、 and update the dewatering system of the city. This is a wonderful countermeasure to develop the building structure and underground structure at the same time. This is a wonderful chance to improve the construction of the whole city and though the premise is that government should make a perfect cit

53、y scheme. To the property, we should encourage owners to commonly own the parking garage and parking lot in law. The ideal condition for the residential district is that any construction or facility, if it is not belong to one owner, and then it is commonly owned realty. Parking garage as necessary

54、ancillary facility, should be commonly owned by all owner, nor should develop enterprise master the ancillary facility resource even utilize the upvaluation chance of the resource to profit from owners. And once the property is ensure, it is indispensable to register so as to confirm the owner, and

55、it shall be handled by the registration organ at the locality, or the property of the parking lot may be in uncertain condition. Meanwhile, strengthen the remediation to the building in division and take it into express term, this could be the trend of the ownership of building methods development.

56、Improve the quality of the construction duly and maintain the owners profit, this subjective and objective requirement need should satisfy at the same time. To the realty management, for the reason of the increasing number and continuous disputes about parking garages and carports, the writer consid

57、er that it is necessary to set up a realty management enterprise to administrate parking lots specially. When the manager transfer from Development Corporation to the employed corporation, the parking lot management enterprise could enter into a contract with owners committee and employed corporatio

58、n. The owners pay for property management fee base on the standard of the number of automobiles or the number of carport. Parking lot manager proceed to admiration within the scope. These responsibilities are as follows: 1.check on the parking garage to confirm whither it has safety hazard before th

59、e development corporation transfer the administration power to the employed corporation. If the parking garage has safety hazard, and then the development corporation should be responsible for the quality of construction; 2. Lay stress on the parking garage safety and inform the owners in time; 3. U

60、ndertake the duty of reparation and extension to the parking lot; 4. Solve the disputes concerning the parking lots timely.4. The solutions solve the dispute of the submerged automobiles and relieve sufferers burden. Towards to the disaster in Guangzhou even many regions in our country, we only coul

61、d pin our hope on the insurance company. Exclude the realty management enterprises obvious omission to the parking garage, the owners may have to bear the injury of their own automobile. Of course, for the irrational drainage system brings about the damage; the government should undertake some respo

62、nsibility of compensation.In conclusion, reinforce the research to the property law concerning the division of ownership of building. Base on the high quality construction, it is necessary to confirm the division among the development enterprise, realty management enterprise and owners committee.And certainly, if we want to put the law or policy into practice, train the idea to the society the consciousness of maintaining the owners interest, clear every parts responsibility is indispensable. 8 / 8