On Judicial Protection Of Right To Housing In China

Housing, As a basic requirement of healthy living, is a prerequisite for having good standing in society and an indispensable part of guarantee for humandignity. Not only does it meet the wants of safety and protection, but also fill human needs about privacy and individual space. Right to housing refers that the people enjoy the right of having house which is affordable, habitable and well-equipped. The right to housing is one of the basic human rights of citizens. The meaning of the right to housing can be understood from two aspects. On the one hand, it is a negative right including the right to peace, privacy and property. On the other hand, it is a positive right which, based on the International Covenant on Economic Social and Cultural Rights(1966) and the situations of present China, consists of affordability of housing price, habitability of housing condition, equality of housing opportunity, non-expulsion of housing and the integration of housing.As basic requirement of human rights and embodiment of judicial remedy right, judicial safeguard for the right to housing having the nature of practical results, is key to smooth implementation of the right to housing. In western developed nations, judicial safeguard for the positive right to housing consists of two parts. The first one is the constitutional litigation with respect to housing legislations. If legislations relating to housing rule of do not meet the need of rule of law, the challenged legislation will be deemed unconstitutional and reconstructed. The second meaning refers to action ability of the positive right to housing, which means that the citizen can bring a suit against infringement of his right to housing and ask for a judgment ordering the government to provide the basic housing for him. In such litigation, the judiciary will determine if the legislation in question is unconstitutional in accordance with the standards such as the theory of legislative discretionary, reasonable review and equal protection. Though the action ability of the positive right to housing is denied in most nations, it will gain recognition in more nations with improvement of human rights protection and the increase of national financial resources. For negative right to housing, the prior judicial review is the wide application of the doctrine of writ in practice. The housing of citizens can only be searched with writ issued by the court with exception of search on consent, additional search and emergency search. The post judicial review is the establishment of the rules for exclusion of Illegal evidences, according to which those evidences acquired by illegal search and detention should be excluded, thus preventing police organs from invading the housing of citizens.The situation of the right to housing is not so optimistic in China. Illegal invasion and expulsion is prevalent and the right to equality of housing can not be ensured. There are many reasons for this situation, but the lack of judicial safeguard is one of the most important causes. The shortcomings of the judicial safeguard for the positive right to housing are twofold: one is the lack of constitutional relief and the other is related to issues concerning judicial safeguard for demolition. Therefore, the system of judicial safeguard for the positive right to housing is in need of improvement. Firstly, the system of judicial review for the positive right to housing should be started. In practice when determining if the legislation in issue is unconstitutional, the principles of equal protection, proportionality and institutional safeguard will be employed. Secondly, judicial safeguard for the illegal building will be improved. It includes the establishment of both the preventive administrative proceeding and the state compensation system for illegal building. As we see, there are also many shortcomings for judicial safeguard for the negative right to housing. For example, the scope of protection is narrow, the subject issuing the search writ is not independent, the elements for applying the writ is unclear, the criminal procedure for execution is not well designed and the post review is not comprehensive. Therefore, it is necessary to optimize the judicial safeguard system for the negative right to housing. Firstly, the scope of safeguard of the negative right to housing should be expanded from traditional private housing to student dormitory, commercial housing, temporary housing, moving housing and illegal building, etc. Secondly, the types of criminal search should be refined. The types of search without warrant should be improved and the requirements for this kind of search should be clear-cut. Thirdly, the judicial review system for administrative inspection should be improved. We should first establish the prior judicial review for administrative inspection, which should be carried out in accordance with the doctrine of writ. Next, the post review system is needed in order to make clear the types of litigation and principles of inspection. Fourthly, the judicial review system for criminal search should be further perfected. It requires improvement of prior judicial review system, establishment of rules for exclusion of illegal evidences and perfection of state compensation system.