Study On Legal System Of Public Housing Security In China

Public housing security consists of many systems, and this dissertation is primarily based on permission and withdrawal.The first chapter introduces some basic concepts and theories about public housing security. There are four basic concepts in this dissertation: public housing, public housing security, permission and withdrawal. Among these concepts, it is more difficult to define public housing than the others. The true nature of public housing focuses on the housing right that government affords to the low- and-middle-income group through public housing. As one form of administrative supply, there are two stages in this process----the administrative decision that is used to examine the housing qualification and the lease contract of public housing. And the process of examining housing qualification consists of permission and withdrawal. The section 2 demonstrates the legitimacy of public housing security. First, realizing substantive justice is of great importance in the process of solving the housing problem of low-and-middle-income groups. Second, the idea of survival caring is not reasonable in explaining the public housing security, as it is apt to deprive citizen’s freedom and rights. Third, human dignity consists of the basic theory of public housing security. Finally, with the development of economy and culture, it is necessary to recognize the transition of the nature of housing right from subsistence right to benefit right.Chapter 2 analyzes the existing problems of public housing security. There are two questions concerning permission and withdrawal of public housing security:the first one is security scope, the other is welfare spillover. At present, public housing security in our country is developing too slowly. There are three problems in the perspective of system. First, the security scope is too narrow for the lack of reasonable connection between house market and housing security system through housing price-income ratio. Second, the definition of security scope is vague, which result in the vagueness of different security subjects in different forms. Third, some conditions of permission are not reasonable, which will exclude some people who should be in the security scope. In practice, as the system of public housing security has not been established in some places, the number of people who can benefit from this system is very limited. The public housing security is more will than ability for the government. The government has not realized the importance of the public housing security. What is more, the vagueness of the scope of security subjects can be contributed to the lack of knowledge of the inner structure about security scope. In practice, a lot of high-salary people acquire the resources in public housing security, in which they can profit by virtue of renting and resale. Welfare spillover occurred when the system of permission and withdrawal is not sound, where the deficiencies of permission cause the initial spillover, and withdrawal cause the secondary spillover.The third chapter mainly studies the security scope of public housing. Security scope is a concept with complex structure, which includes need scope, right scope, subject scope and duty scope. Security scope first means that who should be included in this system, then is the duty scope of the state. The public housing security is limited, which result from the limitedness of public housing resources and the conditions attached to the housing right. The principle of subsidiarity requires the state to shoulder the secondary duty, when the individual is helpless. As security scope concerns housing right and public interest, it is necessary to state that only law can prescribe the basic and important matters. The proportionality principle can also be applied in public housing security, which requires the government to balance the relationship between economic development and housing security, between housing need and resources restriction. The four levels in the public housing security are different, the housing need can be classified as minimum need and non-minimum need, while the former guarantees the housing need, and the latter improves the housing need. Housing right can be classified as tenure and ownership in the perspective of the purposes, and be classified as security right and improving right in the perspective of the level of the realization of the right. The security subject can be divided into three groups: minimum-income family, low-income family and middle-prone-to-low-income family under the condition of the need for security. The above three levels determine the levels of security duty of public housing in our country.The fourth chapter concerns the permission system of public housing security. The major contents of the permission system are the conditions of permission and the procedure of permission. Firstly, this paper focuses on the conditions of permission, analyses rationally about the system and the problems in the reality, and gives some corresponding suggestions to improve. The conditions of permission consist of four aspects: the income of family, the property, the personal inhabitation area and the domiciliary register. The problem which is most important, frustrating and controversial among the four aspects is the fix of income level and the rationality of the constraint of domiciliary register. This paper holds that to fix the bottom of income level with statistic method, to fix the middle income level according to the certain percentage of the ratio of the price of house and the income. The modern housing security builds on the respect of the human dignity. Everyone’s dignity should be treated equally. The domiciliary register which is an irrational sort must be cancel. Secondly, the procedure of permission includes the application, the examination, the publicity, the waiting and so on. Because there are problems in the system of the two levels examination, the three levels examination and the four levels examination, it is necessary to set an agency which is responsible for the permission of public housing security inclusively and to improve the agency properly. When examining the application from applicant of public housing security, the agency which is responsible for the public housing security should examine the truth, legality and association of the application documents. And the agency should exercise the power of examine lawful and rational, should not connect something irrational and not exercise the power of examine reckless. When the agency investigates into houses of the applicant, it should comply with the principle of proportionality. The power, method, content and procedure of investigation should be provided strictly. Meanwhile, it is necessary to make use of the modern information technology to build the information system of public housing security in order to examine the truth of the information from the applicant effectively. Thirdly, there are problems in the system of comprehensive evaluation which is widely adopted, such as the index system is complex, and the distribution and the weight of different index are irrational and so on. However, generally speaking, the system of comprehensive evaluation weighs against different aspects which may influence the permission to applicants, and makes rational decision according to different applicants. So it is somewhat rational and advanced, but it should be properly improved according to its problems. It is necessary to take the factors which are essentially associated with the purpose of housing security into account, to cancel the factors which are not essentially associated with the purpose of housing security. To set the major standard of evaluation according to the personal inhabitation area and the income of family and the property, to set the conditions of family member who is eager for the house or need special care as the prior standard. To evaluate all standards’influence to the essential purpose of public housing security, to set different kinds of marks rationally and set different weights according to different conditions.The fifth chapter focuses on the withdrawl system of public housing security. The imperfection of the withdrawl system of public housing security leads to the solidification of welfare and welfare spillover. Firstly, the withdrawl consists of the ordinary withdrawl and the extraordinary withdrawl. The conditions of the ordinary withdrawl are due to that the natural variation of the beneficiary’s conditions makes him not conform to the conditions of public housing security. The conditions of the extraordinary withdrawl are due to that the beneficiary uses the public house in a way contradict to the purpose of public housing security, or the beneficiary who doesn’t conform to the conditions of public housing security, receives the qualification in a unlawful way, such as cheat or bribery and so on. Secondly, it is necessary to make the procedure of the withdrawl concrete and well-operational. When the agency which is responsible for the public housing security finds out the problem in the process of examining the information applied by the beneficiary or examining electively, it must inform the beneficiary timely and hear from the beneficiary’s idea. When making the decision of withdrawl, it is necessary to reserve the interim for beneficiary in order that the beneficiary has a proper interim to find another house. If the interim expires, but the beneficiary still doesn’t move to another place, the agency which is responsible for the public housing security should first adopt indirect constraint and then direct constraint according to the principle of proportionality. Thirdly, we should improve the system of withdrawl. It is necessary to encourage the beneficiary to withdrawl initially in the way of the stimulation mechanism and to reinforce the punishment to the beneficiary’s unlawful behaviors. We must build the mechanism of information supervision to the applicant and the beneficiary and build the system of individual trust and the system of information of public housing security in order that the applicant and the beneficiary can’t cheat and the agency can examine the false information effectively. Furthermore, it is necessary to build corresponding mechanism of restraining profit; to make the beneficiary has no profit from public housing; to cancel the expectation of investment; to ensure the public houses rotate in the range of public housing security in the way of circle mechanism; to activate the present quantity of public house in order to avoid the solidification of welfare.The sixth chapter concerns the supervision system of public housing security. Because the operating period of public housing security is long and the procedure is complex, it is fruitful to rely on the later supervision. To emphasize the importance and necessity and effect of supervision in the process, this chapter doesn’t deem the system of publicity and the system of hearing as the procedural stage of the permission and the withdrawl, but as the important system of supervision in the process to study them alone. Firstly, the social supervision’s effect of the system of publicity is still not exerting well. It is necessary to improve the system of publicity from the content to the form. Secondly, there isn’t formal system of hearing in the system of withdrawl of public housing security. To exert the supervision and remedy’s function of the system of hearing, it is necessary to enlarge the scope of the application of hearing and build a hearing system which conforms to the reality of public housing security. Thirdly, we need to enhance the judicial review to the public housing security. To further enhance the function of social supervision, it is necessary to build the system of public interest lawsuit to realize the supervision of the public in the way of administrative suit. Our country’s system of public housing security is built by regulation. If there is something wrong with the content of regulation and the court is difficult to refer to the regulation, the court should apply the relative provisions of <The Legislation Act> to plea authoritative subject to review the regulation.