A Study On The Legal System Of House Takings

Aiming at promoting the development of economy and society, the legislation of house removal received universal welcome in our history. But in the era of market economy, the house removal activities, which stress an urban house development mode in combination with the land-based financial objectives of the government, has not only seriously hurt the legitimate rights and interests of the house owners, but promoted the legislation of the house takings. The enactment of the House Takings Statute has laid firm foundation for the realization of a dual purpose:to balance both the protection and the development of house takings. It should include three aspects: an all-round implementation of the house owners’lawful rights as well as a respect and protection of their basic human rights; a perfection of the house takings mechanism that promotes the public interest; an establishment of a compensation mechanism which enables the house owners to share the land development rights.The House Takings Statute has promoted the technical advances ranging from rules to principles in the house takings, which initially established the principles of necessity and justice in house takings. Meanwhile, The Constitution and The Legislation Law have contributed to the improvement of the legal system with law reservation principle. Since China’s acceding to and ratifying the Economic, Social and Cultural Rights Pact, the home ownership affiliated to the levied house has been elevated to the principle of protecting the right to adequate housing in international human rights law. The four law principles, as a bridge between legal values and system design and the practical operation, has promoted or will promote the development and perfection of China’s takings law.In the legislative process of Property Law to promote the House Takings Statute, the debating about the terms of takings has revealed its cross-property of being both the public and private law in the activities of house takings. House takings, as the activity and system authorized by law to deprive house owners of their ownership and land use rights and give them compensation in return, aims to obtain the land, so the determination of house takings has the private law effect of creating property right, one that occurs when the compensation is certain. The standard of fairness ensures that it is the "market" rather than "administration" that plays a leading role in the completion of compensation for expropriation. Therefore, the legal relationship of compensation for expropriation has private laws properties such as being equal and voluntary.The personality of public interest determines the typification of house takings. To ensure the realization of the goal and the justice, the general expropriation activity which promotes the public utility development should at the start get the people using the land involved in the expropriation and compensation procedures. They also have to undertake these obligations. Whereas the private property of compensation for expropriation requires that the determination for the compensation of expropriation be settled by negotiation. Even the dispute-resolving mechanism through administration and judicial is also based on the property of private law for compensation. In special expropriation types, including "inhabitable houses" transformation and "downtown villages" alteration, the main purpose is to improve the living conditions of the inhabitants, while the expansion of expropriation is a type started by house owners who want to avoid the damage caused by excessive range of general expropriation.To promote the implementation of the statutory standard of fair compensation, the land factor should be stressed in the property range of the house takings. As to the mechanism of determining the value of the levied house, the market pricing of the statutory law must be followed; meanwhile, with the opportunity of adjusting Impose Regulations, try to explore beyond the third-party assessment of self-valuation and market transactions. Functionalist theory of compensation for expropriation and house takings justice work together to reveal the lack of fair compensation; therefore, based on the existed land takings modes, such as "to stay in placement", "Gold Package Silver", "land voucher", and other administrative innovations in land takings, the compensation mechanism which enables the house owners to share interests of land development must be further explored.