On Housing Expropriation And Demolition System

Land is owned by private parties and houses are attached to land in most countries and regions of the world, so there is no separate system of levy upon housing. Land acquisition, which is more popular, is the national action that based on public powers. For the sake of public interest or public use, the nation can, according to statutory procedure, obtain a piece of private land compulsively with fair compensation, and eliminate its ownership in order to use it for other purposes. Housing acquisition is a special offspring of China. To define it, we can only get some reference from land acquisition and make a "copy": housing acquisition is the action of a local government above the county level -in representative of the country, for the public interest -to deprive the housing ownership on state-owned land when no agreement could be reached or in case of emergency. For the expansion of the social functions of ownership, the ad hoc system is established in public law to guide the exercise of public power which can give extra sacrifice or burden on specified private housing under particular circumstances in order to implement social welfare undertakings.At present, there are many theories about land acquisition system and a quiet good system has been established in practice. However, levy upon housing is a unique product of China and have no alien system for reference. Research in this field is insufficiency while legislation on this problem is in short. By so far, there is only administrative regulation regulating such fields which is far from perfect, not to mention the "Urban Housing Demolition Management Ordinance" conflicts with the Property Law in many respects and will surely be replaced by new legislation. Apparently, in-depth study of the issue has not only far-reaching theoretical significance, but also vital value in practice.Housing expropriation can be divided into "expropriation without demolition" and "expropriation and demolition" due to the consequent action. Generally, the former happens in protection of the historical and cultural heritage, local color, ethnic characteristics and traditional conservation. For example, there are a lot of houses built during the Ming and Qing Dynasties and a majority of which are at stake. Considering the protection of cultural relics, traditional culture and people's life and property safety, the local government can decide to levy upon the houses and make reasonable use of them after some repair work. The latter occurs when the state-owned land beneath the houses is in need, so the land-use right is deprived at the same time. The main function of housing expropriation is to remove ownership to the housing while deprivation of land-use right is the side effect. In addition, housing expropriation relates to housing demolition, which inevitably involves the judgment of public interest, the compensation, the enforcement, the regulation on non-public-use expropriation, the judicial remedies, and other important issues.As a judge of the Supreme People's Court, the author undertook the drafting of judicial interpretations of housing demolition and has a profound cognition on the reality and disadvantage of the demolition system in China. As far as I'm concerned, it is very crucial to rebuild the housing expropriation and demolition system in urban area. That is also the main reason why I chose this subject for my dissertation. As the system involves a variety of administrative actions and civil issues that have relations to legislative, judicial and administrative levels. Besides, the type of disputes varies, so not a single subject or method can cover all the issues. This paper should combine with a variety of methods, including positive analysis, historical analysis, comparative analysis, and logic analysis. The ultimate aim of the paper is to establish a system.