Research On The Legal System Of Urban Planning In China

The following facts explain why the abuse and rent-seeking of power is very common and contradictions between the private property rights and the administrative power are acute: the theoretical concerns about the legal system of urban planning are badly wanted and the related researches are deficient in both depth and breadth, which can not meet the practical needs effectively. In order to perfect the practice of urban planning, it is necessary to construct a new theory of administrative law which regulates the exercise of executive powers and protects the private property rights simultaneously based on the reflections and criticism of the existing legal theories.Beginning with the research on the concept, function and system of urban planning and urban-planning law, this dissertation analyzes the legal nature of urban planning. Based on the introductions of the related theories in Japan and the United States, it elaborates the problem of judicial review of urban planning. At last, it inquires into the problems of lax enforcement of urban planning administration in light of the game theory and put forward some suggestions about corresponding policies. Except for the introduction and the conclusion, the dissertation is divided into four chapters.In the introduction, firstly discuss the problem which frequently appeared in the urban planning and its theoretical and practical significances; Secondly introduces the article writing research approaches,structure and interdisciplinary studies. Use the standard and the real practice research method, finally has carried on the introduction to the article primary coverage as well as the structure arrangement.In the Chap. I, the dissertation gives an overview of urban planning and urban planning law. Limits belongs to one kind of abstract administrative action's theory understanding in the text significance urban planning , In the practice of the urban planning and the urban planning law in the function, the system aspect's content is confused in together , The scientific research and the legal science research's key has not separated so Seriously influence the urban planning law rules and the regulations of the civil rights,decide the right and wrong and stop the numerously struggles and human rights safeguard function display. For comprehensively systematically key and the content carries on to the urban planning and urban planning's method research combs; Pointed out explicitly the urban planning has the scientific nature, the efficiency, the policy-type and the regulated four characteristics. Planning exports to stress on the urban planning's scientific research while the government pays great attention to plan takes an economic society to develop the policy validity. Only then regulated and legal science research close involvement, the jurist should pay the attention on the important object of study. Meanwhile to separate the plan and the plan law conducts in the fundamental research, to both function, the system have carried on relative property showing, ensure about the scope which both must pay attention on:The plan system is refers to formulation,the revision,the implementation the plan movement system, The plan law system refers to is in the legislative significance legal regulated document system ; The plan function is for the purpose of realizing the human in aspects and so on economy, society, environment comprehensive, coordinated and the sustainable development, But urban planning's method function is for the purpose of the standard resources deployment, the restriction civil rights movement and the protection personal right.In Chap. II, based on the analysis of the structures between public power and private rights in the area of urban planning, the dissertation give a rational definition of the legal nature of urban planning.The public power restriction and the private rights protection are the urban planning law research two theory dimensions. Our country present urban planning law pays great attention on the administration, but lightly controls the power, urban planning serious damage private property right , actually does not have the corresponding legal relief, has disobeys the government by law spirit ."Must provide relief the government by law principle in line with the rights"emphasis through carries on the reasonable restraint to the urban planning executive power to strengthen to the personal property rights safeguard.Simultaneously this chapter introduced Japan reciprocity theory, this theory pointed out that the urban planning constituted each kind of limit to the private property right, based on police state theory and national public intervention theory dual angle of view, regarding profits the behavior as well as may with the way which profits offsets carry on the legal judgment to the benefit change influence not big limit behavior by way of the burden, but with profits regarding the burden differs so much as to be beyond comparison seriously even eliminates with the personal property rights endures has one compares time then must give in judicature's correction, regards as the country takes over for use take the public interest as the goal. At last, Bases in public and private power structural relation combing with reconsiders to the urban planning, in profits from Japan to repay in mutually the foundation which the innate disposition discusses based on effective adjustment social relations utilitarian consideration proposed that should focus in provides the judicial relief and the legal nature limits urban planning for concrete administrative action or influence formidable sponsor specific authority duty behavior.In Chap. III, based on answering whether or not the rights are infringed as well as whether or not to grant remedy, the dissertation deals with the question of how to give the remedy to the one whose rights are infringed. Mainly to discusses to receive the violation the personal right to provide in legal the relief, the scope defines of judicial review in the urban planning scope and the standard; Centers on three aspects of judicial review scope's about the urban planning discussion to launch: First, to text significance urban planning whether can carry on the judicial review; Second, whether should set up the urban planning administration public welfare lawsuit system; Third, whether to deal with the urban planning related administration regulated document carries on the judicial review. After cost - income economic analysis the author thinks in the text significance the urban planning and the public welfare question may integrate the judicial review the scope but about the administrative regulated document advocated that carries on the supplementary examination in the existing system frame. Also centers on three aspects of judicial review standard's about the urban planning discussion to launch: First, explains of judicial review our country urban planning present standard is anything as well as the existence question; Second, inspects of judicial review the domestic and foreign related urban planning research present situation, and introduced in detail how in US's urban planning judicial review system is to carry on the consideration to the right limit and the harm compensation question; Third, puts forward the proposal and the perfect measure in view of the question, Whether does the position standard confirm content of reasonable measure foundation and the urban planning administrative case the urban planning take resources deployment Kaldor theoretically the Hickes as the achievement places on trial the loss compensation standard.Chap. IV, based on answering whether or not the rights are infringed as well as whether or not to grant remedy, the dissertation deals with the question of how to give the remedy to the one whose rights are infringed. It is divided into three parts: in the first part, the dissertation studies the concept and content of the supervision of administrative law enforcing about urban planning. In the second part, it inquires into the phenomena of lax enforcement about urban planning according to the game theory. In the third part, it analyzes the costs and incomes of rent-seeking of power in light of game theory, it put forward some suggestions about corresponding policies: straightening out the system of supervision; reducing the costs of supervision; increasing the moral cost of lawbreakers; giving full play to social supervision and supervision of public opinion etc..For the breaking the law which appears implementation of process in view in the urban planning,does not enforce the law strictly,does not punish illegal activities phenomenon , mainly discuss the law enforcement inspection effect and enforces the law but break the law oneself and so on two aspect urban planning administration law enforcement surveillance questions. This chapter of content divides into three parts: The first part studies the urban planning administration law enforcement surveillance's concept,Content and to related politics,the economic basic theory carries on the introduction emphasizes the fundamental research to the law enforcement practice instruction function . The second part of utilization makes behavior of balanced research the manner use the game theory as the tool, carry on the analysis of which does not enforce the law strictly the phenomenon to the urban planning administration law enforcement. And draws the conclusion: Does not enforce the law strictly the origin lies in the law enforcement cost to be high,,has the guarantee drive system as well as the personnel intelligence not standard deficient, and the law enforcement cycle is long. The third part through first elaborated our country urban planning domain authority seeks present situation, seeks using the game theory model analysis authority the income and the disbursement situation as well as the gambling balanced result is anything then puts forward the policy proposal : Straightening out surveillance system,reduces the surveillance cost to be low,increases law breaker's moral cost, full display society surveillance and news surveillance's function. Enlarges the lawman in the information transmission unimpeded foundation the probability which investigates by forms one kind of effective legal deterrent to the law enforcement lawbreaker.Based on what mentioned above, the author come to the conclusion that we must follow the idea of right-oriented, because straightening out the relationship between the public powers and the private rights, constructing the relationships between individual interests and social interests and between the executive power and the private property rights is the key to establish the legal systems of urban planning and regulate the various kinds of social relations in the process of mapping and implementation of urban planning.