Research On The System Of Dealing With Illegal Constructions

This paper holds that it is necessary and consistent with objective facts tocollectively refer illegal constructions and unapproved constructions as illegalconstructions. The typological analysis of the concept of illegal constructions isinvolved with the principle of treatment of illegal constructions and is of greatsignificance. Illegal constructions are the result of violation of public laws, theobject in the civil law and the real estate with certain social harmness and value.In the construction of treatment system for illegal constructions, we cannot denythe legal status of illegal constructions as real estate ownership object to curbillegal constructions, otherwise, such denial would harm acquisition, alterationand extermination rule and apposition rule of the ownership in property in thecivil law, damage the form rationality of the civil law and endanger theprotection of legal constructions. While curbing illegal constructions, thegovernment cannot curb for the sake of curbbing, but should treat such projectsseparately on the basis of respecting the value of the existing illegal constructions. In the recognition and treatment of illegal constructions, weshould attach great importance to restrict public rights and respect the objectstatus of real estate ownership of illegal constructions and grant the deservedprotection to private rights. We should strengthen administrative supervisionover constructions regulations, strictly control the newly constructed illegalconstructions, curb illegal constructions by the way of taxation and introduce thepenalties to combat illegal constructions, allow illegal constructions to beregistered and transferred.Chapter One discusses the definition of constructions, briefly reviews thepractices of control and management on the constructions in China and foreigncountries, makes etymological analysis on the concepts of illegal constructionsand unapproved constructions, combs the provisions of government files,regulative documents in law and the major cities on illegal constructions andunapproved constructions after China liberation and proposes that illegalconstructions and unapproved constructions should be collectively referred asillegal constructions. Chapter Two deeply researches the definition of illegal constructions. Bycriticizing the existing nine definitions, the author holds that the definitionshould be analyzed and refined on the basis of constructions regulationprovisions, administrative managements and judicial practices in China.Only ifthe definition is theoretical description of the constructions regulation practicesin China, it would be identical to the practices of constructions regulation. Onlyby this way can the definition conversely guide the practices and can the essenceof illegal constructions be further recognized. If we only research the definitionsof illegal constructions from the theory, such definitions cannot well reflect andguide the practices and artificially produce the theoretical great gulf fixedbetween the law circle of constructions regulation and the practice circle ofconstructions management. By empirical analysis of the system forconstructions regulation in China, the author indicates that illegal constructionsrefer to the constructions without planning permit, land use permit orconstructions permit of constructions while with license granted (or approval) orpermitted but not constructed on the basis of permissive conditions. This definition has a high degree of generality, simplicity and good maneuverability,is consistent with the practices of constructions regulation in China and is thereal summary of the practices thereof. The author further makes categorizedanalysis of illegal constructions on the basis of twenty standards and makes adiscussion on the enlightenment of the categorization of illegal constructions onthe treatment thereof.Chapter Three analyzes the postion of illegal constructions on public lawand private law and discusses the enlightenment thereof on the construction ofillegal construction processing system and analyze the necessity of land useapproval, planning permit and constructions permit involved in constructionscontrol of the country.After combing the relevant provisions of some countriesor regions on illegal constructions, the author concludes that: first, thedepartments in charge of illegal constructions in every country or region are notalways the same; second, constructions are divided into small constructions andlarge and medium constructions, with relatively loose management on theformer; third, constructions in violation of the procedures are recognized, which can be changed into legal constructions by making up the formalities inaccordance with law; fourth, it is emphasized that illegal constructors should beobliged to pull down illegal constructions of their own or on their expenses; fifth,the control over constructions is detailed as the management and responsibilityinvestigation on the relevant persons; sixth, the penalties are adopted to curbillegal constructions; seventh, some countries or regions collect the taxes onillegal constructions in accordance with law with more tax collected on legalconstructions which are changed from constructions in violation of proceduresby making up the formalities than originally legal constructions.The paper holds that illegal constructions are the result of violation ofpublic laws, the object in the civil law and the real estate with certain socialharmness and value. By researching civil society theory and its enlightenmenton prevention and control of illegal constructions, the author proposes that weshould strengthen the coordinative regulation between public laws and privatelaws, analyze the classes who construct illegal constructions from theperspective of benefits and reasons and give full play to the role of civilian organizations and autonomous organizations of base masses. By analyzing thedivision between public laws and private laws, the interaction between those twoand their enlightenment on prevention and control of illegal constructions, theauthor proposes that we should attach great importance to combination andcoordination between public laws, between public laws and private laws andbetween private laws, improve liability system and pay attention to the fairnessin law enforcement and discuss the theories of public rights and private rightsand the division between them.The author holds that the enlightenment of thetheories of public rights and private rights on the constructions of prevention andtreatment of illegal constructions is that in the prevention and treatment ofillegal constructions, we should be well aware of private rights and respectprivate rights, be well aware of public rights and restrict public rights, explicitthe functions of the departments with public rights,make sure the power sourceis legal,exercise public powers legally.and Finally, the author discusses theenlightenment of the minimal state of Nozick on prevention and treatment ofillegal constructions. Chapter Four researches the issue whether illegal constructions can be realestate ownership object.The first part analyzes the significance of property rightsof constructions, the attribute of land, the ownership of land,the issues releventwith construction land use rights,land use rights,ownership relations betweenland and constructions and basic theories of ownership and the restriction of theownership of constructions;the second part focuses on the research on the issuewhether illegal constructions can be real estate ownership object. The authorholds that when it comes to the treatment of illegal constructions, we shouldanalyze the legal status of illegal constructions and demonstrate whether illegalconstructions can be right object. Only in this way can we ascertain their rightownership, determine their subject of liability and entitle certain rights to thesubject to withstand the arbitrariness of public rights. The treatment of illegalconstructions should be based on the differentiation of the rights and provisionsviolated in illegal constructions and it is improper to neglect the right status ofillegal constructions, to ignore whether illegal constructions fall intoconstructions in violation of procedures and if it is the case, whether such projects can be corrected and to pull down illegal constructions withoutdifferentiation. It can be seen that in the treatment of illegal constructions, wemust recognize what rights illegal constructors have on illegal constructions,that is to say, whether illegal constructions can be right object and if it is thecase, what rights’ object such projects can be, which certainly becomes theimportant precedent issue to be cleared in the research on the treatment of illegalconstructions; the recognition and treatment of illegal constructions converselybecomes relatively simple in the administration in accordance with law. To thisend, the author researches the relationship between whether illegal constructionscan be right object and the constructions of the treatment of illegal constructions,combs the provisions of some countries and regions on whether illegalconstructions can be ownership object, analyzes the provisions and attitudes ofthe exiting laws in China on whether illegal constructions can be right object,deeply analyzes several theoretical points on whether illegal constructions canbe ownership object and finally proposes that we should recognize severaltheories and reasons of the status of the real estate ownership object of illegal constructions and suggest using the theory of vested rights, the theory of livinglaw and the theory of property rights in common law to demonstrate the realestate ownership. The author enumerates the nine reasons for the recognition ofillegal constructions as the real estate ownership object: first, the GeneralProvisions of the Civil Law and the Property law in China do not deny illegalconstructions can be the ownership object; second, the ownership of illegalconstructions entitled to illegal constructors is conducive to the implementationof public laws and the maximum protection of civil rights; third, the upholdingof the principle of the acquisition of ownership by the fact of construction andthe entitlement of the ownership of illegal constructions to illegal constructorsare to respect the form rationality of the civil law; fourth, the denial of illegalconstructions as ownership object is contrary to apposition rule; fifth, the denialof illegal constructions as ownership object and the nonobservance of theprinciple that the constructions is to produce the ownership enable the systemfor buying and selling real estate to be constructed according to gradualcompletion not to be established; sixth, the recognition of illegal constructions as ownership object is not in conflict with numerus clauses of property rights;seventh, the recognition of legal constructions and illegal constructions asownership object is related to unified establishment and improvement of therules for trading market of constructions; eighth, the entitlement of theownership of illegal constructions to illegal constructors is conducive to thebuilding of harmonious society and social steadiness; Actually, the recognitionof the object status of real estate ownership of illegal constructions is a judgmenton advantages and disadvantages in legislation. In brief, the issue whether illegalconstructions can be ownership object depends on the provisions of the law.Finally the author holds that we should have the correct cognition about therelationship between the rules of rights acquisition and rights restrictions and therelationship between the cognizance of illegal constructions and endow themownership.Endowing ownership to the illegal constructions is not equal toencourage illegal constructions and does not run counter to the princinpal offorcing to transfer ownership should compensate in civil law.Chapter Five proposes five suggestions for the improvement of the processing system of illegal constructions. The author holds that we shouldstrengthen the supervision over the constructions, allow illegal constructions tobe transferred and registered, collect the relevant taxes on illegal constructionsand introduce the penalties to curb illegal constructions.