我國業主自治立法的結構性困境及其出路

我國業主自治立法實踐中的嚴重失靈與文本上的空前重視反差強烈，導致了多輸的局面。隨著我國房地產逐漸步入老化週期，改善小區治理將愈發困難和迫切。我國業主自治立法的失靈，根本上在於其結構性的錯位與疏失:第一，我國住宅小區普遍封閉且超大規模、高密度的獨特性決定了其治理負荷遠超業主自治的承載能力，其實質上主要是我國土地制度下地方政府為成本收益最大化而將市政公共產品私人化的結果，是公法遁入私法的典型體現;第二，業主自治作為私人治理普遍面臨著固有的困境，即使立法已預設針對性的應對措施也難以完全克服，而我國立法反其道而行之的逆向規定進一步放大了其實施的難度。上述雙重結構性困境疊加，決定了解決我國業主自治立法的失靈問題僅靠私法邏輯或政策層面的調整難以奏效。要破解這一難題，必須妥當界分私法上的自治與公法上的政府責任，並切實針對業主自治的固有困境作充分的立法應對。

In China, there is a stark contrast between the legislative emphasis placed on homeowners' self-governance and its serious dysfunction in practice, producing a situation of multiple losses. As China's real estate sector gradually enters an aging cycle, improving neighborhood governance will become ever more difficult and urgent. The fundamental reason for the failure of China's legislation on homeowners' self-governance lies in its structural misalignment and deficiencies. First, the distinctive features of Chinese residential communities—typically closed, of super-large scale, and high density—generate governance burdens that far exceed the carrying capacity of homeowners' self-governance. Substantively, this is the product of local governments, under China's land system, privatizing municipal public goods in order to maximize cost-benefit outcomes, a classic case of public law retreating into private law. Second, homeowners' self-governance as a form of private governance faces inherent difficulties even under ordinary circumstances; even if legislation pre-sets targeted coping measures, these challenges are hard to overcome. Yet China's legislation, by taking the opposite course with counterintuitive provisions, has further magnified the difficulty of implementation. The combination of these dual structural predicaments means that resolving the dysfunction of China's legislation on homeowners' self-governance cannot be achieved merely through adjustments based on private law logic or policy-level finetuning. It is instead necessary to properly distinguish between autonomy under private law and government responsibility under public law, and to provide robust legislative responses tailored to the inherent dilemmas of homeowners' self-governance.