Legal Choice On Housing Reconstruction After Wenchuan Earthquake

This paper, in the context of post-Wenchuan Earthquake housing reconstruction, deals with the legal choice and system structuring concerning the reconstruction after natural disasters. The houses, damaged in natural disasters, are properties of the victims, and for that reason the main responsibilities for the rebuilding lies on the property owners, namely the victims themselves. However, even in the foreign countries and areas where market economy is highly developed, governments shall also play an important part in providing post-disaster temporary dwellings and house salvation aid; post-disaster preferential house lending and relevant tax concessions and post-disaster market supervisions. Reconstruction after a natural disaster involves the boundary alignment between the government and the market at such a particular period.The post-disaster reconstruction phase is different either from the earthquake relief phase or from the normal social state before the earthquake, it is such a special period during which the society is at the transition from emergency state to the normal state. By on-the-spot investigation over one year and comparative studies of the foreign experience in post-disaster housing reconstruction, it is found that numbers of difficulties, predicaments and disputes arising out of or connected with the housing reconstruction following the Wenchuan Earthquake are due to the indistinct boundary between the government and market, too much undertaking by the government and serious insufficient policy support which also leads to the poor play of the market mechanism. The key to the difficulties is the legal choice. During the reconstruction period, the answers to such questions as to what extent the government shall provide public products or salvation services and what shall be left for the market constitute the boundary between the government and market as well as the boundary between the public power and private rights. Under the conditions of market economy, the post-disaster reconstruction should be based on the market mechanism function, but the reconstruction is not carried out at a normal social condition, therefore insufficient policy support by the government will hinder the market mechanism from functioning well. So the government must ensure the reconstruction be conducted through market-oriented operation by providing more policy support. On the other side, the legal choice relating to the reconstruction institutionally clarifies the boundary further between the government and market, thus conductive to promoting the reasonable and orderly market division of labor and cooperation between the government and market.Post-disaster reconstruction must solve the problem of boundary alignment between the government and market at the transition period for correct legal choice and proper legal system structure, so as to promote and push forward the reconstruction process in order. Institutional structuring includes the "pure" public legal issues such as the government aid system following the disasters; the house insurance system which is a blend of public laws and private laws as well as the cooperation of government and market; and also the "pure" private law issues caused by the impact on the normal civil order because of the nature disasters, such as the credit financing for the rural house rebuilding, the post-disaster rebuilding of condominiums. The so-called "pure" private law issues are private ones when the society is in a normal state, but natural disaster causes severe impacts on the normal social state, the private transactions, which is carried out when the society is in a normal state, encounters ineffectiveness or failure. When such circumstances occur, the government should reach out to make up for the deficiency of the market in order to restore the market mechanism,to set up policy-oriented insurance companies, to provide post-disaster subsidized loans, and to formulate special policies for the reconstructions of condominium.This paper is divided into six chapters, which includes introductory and concluding remarks:The first chapter, introductory, is an important part of this paper. It focuses on introducing the background of the this paper’s research selection and its significance, illustrating the problems, object and scope of this paper, reviewing relevant literature by scholars both at home and abroad and defining the research approaches, research content and research method.The second chapter is the theoretical basis of this paper. By using the Government-Market analysis framework, the government-market relation in a normal social state, during disaster relief phase and during after-disaster reconstruction phase are systematically reviewed, summarized and compared for the purpose of discovering the particularities of the post-disaster reconstruction phase, exploring the special need for the government-market relation allocation at such phase and the measures to be taken to match this special need in legal choice. Post-disaster government-market boundary alignment should be realized though legal choice, namely, defining the government statutory duties during the post-disaster phase by law, except those that should be done by the government, the rest is left for the market to play a full role.Chapter three is the part of demonstration and investigation. By means of questionnaire surveys, talks and interviews and living in the earth stricken areas, the author of this paper reviews and summarizes the behaviors on the part of the government, the market and the non-governmental organizations during the post-Wenchuan Earthquake reconstruction period, and further tackles the main problems, finding "real problems" from reality for the right direction of the research of this paper. Through empirical analysis, it is concluded that the sources of all the problems in connection with the post-quake housing reconstruction are rooted in the indistinct relation between the government and market and thus the poor play of the market mechanism due to institutional deficiency.The fourth chapter is a summarization of foreign countries’ experience. By comparative research approach, the legal choice adopted by United States, Japan and Chinese Taiwan for post-disaster house reconstruction are studied and analyzed for their fitness and reference value for Chinese realities as they are taken into consideration.The fifth part deals with the institutional structuring. Based on the investigation into the earth-stricken areas, considering the experiences and lessons of abroad, using the government-market relation theory, it is advanced that there are four fields where special attention should be paid to legal structuring for the post-disaster house reconstruction, they are housing salvation, housing earthquake insurance,financing for rural housing reconstruction and the reconstruction of the condominium. The house salvation system mainly defines the salvation duties and standard for the government after the disaster happens, setting a clear boundary between government and market from the point of view of the government. the housing earthquake insurance system mainly defines the duties of the government and market in facing the disaster, through close cooperation of the government and market to establish the disaster insurance system, which is financially supported by the government and operated by commercial insurance companies under market rules, distinguishing the basic insurance from supplementary insurance, and focusing on the protection of the personal houses and other properties. financing rural house reconstruction system aims at solving the bottle-neck problem of fund raising. The system by which pledges and mortgages can be created on the right to the contracted and managed rural land must be established, the legal operation mechanism of finance and insurance companies that provides loans for the rural reconstruction must be restructured and the rules and regulations governing the participation of social capital in the reconstruction must be improved. the general rules for condominium reconstruction and repairing following disasters must be improved, the rights and obligations of those minorities who do not take part in the reconstruction and repair must be arranged institutionally and special rules must be made to promote the normal operation of the housing reconstruction market after disasters.The sixth chapter is the final part. On the supply of private goods, the role of the government is limited while the market forces are unlimited. The two essential problems in the housing reconstruction after the Wenchuan Earthquake, i.e. the indistinct boundary between the government and market and the insufficient supply of institutional support, can only be resolved through legal choice, which lies in the proper legal system construction.The innovation of this paper can be seen in the following three aspects:(1) the empirical research approach. The author has been living in the earth-stricken areas for more than a year for investigation, obtained a wealth of first-hand empirical data and finally found the "real problem" in social practice, i.e. all problems in the housing reconstruction after the disaster lie in the fact that there is no such a clear boundary between the government and market, no sufficient supply of institutional support. The finding is the standing point from where the author probes theoretical and institutional plan for resolving significant practical problems;(2) the theoretical probes and institutional supply in this paper are concentrated on the "post-disaster recovery and reconstruction period" which is ignored by the researchers currently。A house, in its nature, is a private property for which private laws and market rules are applied in the pre-disaster normal social state. But, because of the particularity of the post-disaster reconstruction, the cooperation and division of labor between the government and market, the joint adjustment of the public laws and the private laws are needed;(3) in connection with the problems, legal system construction proposals in four fields are put forward. Many researchers have been working on one of the four fields, but one of my innovations is the focus on the government-market relation to provide a package of systems as the legal choices to deal with the post-disaster housing reconstruction.