Conflict And Balance: The Powers And Rights In Land Expropriation

Among the powers and rights in land taking issue, Eminent Domain and Zoning are powers, whereas real property rights and land development rights are private rights. The nature of the conflict between powers and rights, Eminent Domain and real property rights, Zoning and land development rights is the intervence to private rights by powers legally. The Law draws the line of powers execution and the rights tolerance.Eminent Domain is the power of government to take property. The objectives of Eminent Domain are property rights including personal property and real property, rights in rem and claims. The legal effect of conflict between power of Eminent Domain and rights of property is the damage of rights, meanwhile raising compensation claims and reversion claims. The approach of balance is public interest as the element of execution of Eminent Domain. The point is no more the content and scope of public interest, but the formation of public interest compared and balanced with private interest and the procedure of formatting.Zoning is the power government to limit land use. Land development right is private, property right and surface right in civil law system. The legal effect of the conflict between the power of Zoning and land development right is the tolerance of the latter without compensation. But if it goes too far, it is regulatory taking with compensation needed. The approaches of balancing are tests designated by courts, the rules within private rights and private contract etc.Public interest is designed to be the element in Chinese laws on taking issue, but it is nominal in practice and has already differentiated. The Zoning powers of China are all executive powers, which makes zoning loosing public interest guarantee. The development rights of rural lands owned by the collectives are taken. Chinese alternative compensation is quota transferring. That is why China should approach the rule of law. China should establish the principle of proportionality under rule of law. Referencing the experience of zone expropriation and rezoning in Taiwan jurisdiction and the achievements of Chendu land reform, China should apply the principle of proportionality to balance the powers and rights in land taking. China should also establish and improve public participation as procedure element of powers.