The Research Of The Generation Of Urban Planing Law And Its Mechanism

Urban planning has experienced institutional transformation along with the rapid urbanizing progress in the thirty year reform progress of China. Urban planning legal system, successively centering around Urban Planning Law, Urban and Rural Planning Law, has been roughly established. However, the practical operation of legal institution deviates from formal requirements, thus asks for substantial judgements instead of formal standards such as laws and regulations to evaluate China's urban planning law, along with further observations of its generating mechanism. By analysing German and American urban planning law, which are also the hallmarks of the establishment of urban planning law in general and they have direct or indirect impacts on the generation of Chinese regulatory detailed planning, this dissertation contrives to extract the common divisor of the generation of urban planning law, and to make it the basic analytical frame for China. Besides, the comparison between the generation mechanisms of urban planning law will be analysed in order to uncover the starting point that explains the inner mechanism of the current developing phase of urban planning law in China.Constructing freedom and restrictions mainly against danger had been established during the progress from police state to state of law in Prussian Germany. In Building Line Act (1875), the road-line drawing based on public order developed into road planning legal restrictions out of considerations to guarantee the public use of land. Residence Act (1918) established district planning restrictions on both use and scale of private land constructing freedom, in order to guarantee a sufficient supply of healthy residences. Supported by theories such as "social state" and the social obligations of property rights, public welfare requirements during urbanization transformed from administrative practice to urban planning law through parliament legislation, setting restrictions upon constructing freedom.The zoning system of the USA started from The New York City 1916 Zoning Resolution (1916). Promoted by A Standard State Zoning Enabling Act, Zoning Enabling Acts were accepted in nearly all the states. In 1926, U.S. Supreme Court held that zoning system was constitutional in Village of Euclid v. Ambler Realty Co.. The urban planning law which zoning ordinance represents is a comprehensive zoning restriction on both the use and scale, developed on the basis of minimum land use restriction defined by Nuisance Law. Supported by the extension of regulating power and the property right concept of property value protection, State legislation and Federal Judicature finally confirmed the public order set by urban planning law, and a balance was made between conflicting property rights and interest differentiation. A comparison between German and American law leads to a conclusion that one common feature shared by the generation of urban planning laws is the generation of legal regulation, which sets and constrains planning restriction, focuses on future land use and aims at public purpose not limited in dangerous prevention. The mechanism of substantial generation was originated from entitlement conflicts between the public and private land users as well as between private land users in excercising their constructing rights. And the public welfare generated in the promotion of conflicts, directed by either state or society, was transformed into urban planning law, setting public order to restrict constructing freedom.Judged by the frame of the common features mentioned above, urban planning law has gradually undergone some transformation from formal sense to substantial sense. A comparison between generating mechanisms will enable us to observe the characteristics of the development mechanism of Chinese urban planning law through perspectives such as right to use land for construction, parties who share right to decide how to construct, local governments empowered with urban planning authority and represent public interest, and the effects of real estate property interests. These observations might become a prospect of future development as well as a threshold issue to be considered in institutional establishing.