| "Nor shall private property be taken for public use,without just compensation."As one of the important contents of the Fifth Amendment to the Constitution of the United States,just compensation has been repeatedly applied by the United States Supreme Court and lower courts.Despite the institutional gap between the United States with China,as a Die Junktimklausel,there is no essential difference between the just compensation in U.S.Eminent Domain law with that in Chinese Eminent Domain law.In 2004,the amendment to the Constitution of the People's Republic of China included the word "compensation" in the expropriation and take clause,Article 10(3)and Article 13(3)of the constitution provide that the state may,for the public interest,expropriate or take over land(private property)for public use,and pay compensation in accordance with the law.Property Law of the People's Republic of China of 2007,Regulation on the Expropriation of Buildings on State-owned Land and Compensation of 2011(Article 2),and in August 2019,revised Land Administration Law of the People's Republic of China(Article 48(1))provide that Compensation should be given for the expropriation of buildings on state-owned land or collectively-owned land,and the extent of compensation should be defined in terms such as "full amount","fair" or "reasonable".No compensation,no expropriation,the essence of compensation is to bar Government from forcing some people alone to bear public burdens which,in all fairness and justice,should be borne by the public as a whole.However,in view of China's complicated land property system and expropriation compensation practice,China's compensation norms still face many interpretation difficulties:What is the constitutional requirement for compensation?How to reconcile the requirement of compensation in the Constitution of the People's Republic of China with the requirement of compensation in laws and regulations,such as Property Law of the People's Republic of China,Land Administration Law of the People's Republic of China and Regulation on the Expropriation of Buildings on State-owned Land and Compensation?What is fair and reasonable compensation?How to achieve fair and reasonable compensation?How to define the objects of expropriation and compensation?How to awaken the function of compensation in restricting government expropriation power?The theories and practices of just compensation in the United States can provide a possible reference for China.In addition to the Introduction,this dissertation is divided into 6 Chapters:The introduction expounds the starting point of the study on the doctrine of just compensation in U.S.Eminent Domain law,the basis and significance of the study,main content and structure of the study,the domestic and foreign status quo of the study and the research methods.Chapter 1 distinguishes the basic meaning of just compensation in U.S.Eminent Domain Law and establishes the correct premise of the research."The concept without content is vague,and the idea without concept is blind." The framers didn't explain much enough about the constitutional meaning of just compensation with only 12 words in the last sentence of the Fifth Amendment to the U.S.constitution.Based on originalism,just compensation was born as a restrictive element of eminent domain,which conveyed and instilled into American people with two idea:"inviolability of property rights" and "uncompensated expropriation will violate fundamental rights."As a case law country,the constitutional meaning of just compensation in the United States depends largely on the interpretation of the courts,especially the Supreme Court of the United States.In Monongahela Navigation Co.v.United States,Bauman v.Ross,Boston Chamber of Commerce v.City of Boston and Olson v.United States,the Supreme Court of the United States has interpreted the meaning of "just" and"compensation" in "just compensation”---an equivalent for condemnee's loss,and a compensation that would be just to both condemner and condemnee.Chapter 2 clarifies the basic theories of just compensation in the United States and lays the foundation for the research.Fairness theories,efficiency theories and public choice theories justify just compensation:as one of the multiple dimensions of social justice,just compensation can not only prevent property owners from bearing disproportionate burdens,but also prevent the government's fiscal illusion,promote economic and social efficiency,and shape the public reason of the government."Taking","public use" and "just compensation" are the three core contents of eminent domain clauses.Taking revolves around eminent domain,as the subordinate power of sovereignty,eminent domain is absolute and supreme,public use and just compensation are the limits to eminent domain.When the concept of public use keeps expanding,the restriction of public use is gradually diminishing,and the restriction function of just compensation has been strengthened.Chapter 3 analyzes the contents of just compensation and outlines the multiple aspects of just compensation.Just compensation contains many contents,which can be divided into two categories:entity and procedure.The content of the entity centers on the subjects of compensation,the objects of compensation and the compensation standard,etc.;The content of the procedure focus on the ways,methods and steps of the subjects of compensation to achieve just compensation.The entity content is "body"and the procedural content is "wing",which together constitute the flesh-and-blood skeleton of just compensation.Chapter 4 analyzes the standard of just compensation in multiple dimensions,and provides objective rules for the application of the standard.The fair market value is a standard created by the court.The determination of the just compensation standard is a key to solving the difficult application of just compensation.However,the fair market value also faces many new problems.What is fair market value?What are the determinants of fair market value?How to calculate fair market value?This Chaper extracts the criterion or doctrine of fair market value identification,summarizes the calculation method of fair market value,and analyzes the dilemma of fair market value standard by the analysis of precedents and basic questions of fair market value.Chapter 5 expounds the critical recommendations of just compensation standard,and resolves the rational deficiency of fair market value."The development of the times will always enriche the new connotation of the system," Although fair market value occupies an absolute dominant position in U.S.Eminent Domain Law,it has many drawbacks.The American theoretical and practical circles know this well,and be trying to make up for the drawbacks of fair market value by using multiple methods such as subjective valuation and premium compensation to achieve more just compensation.Chapter 6 grinds the experience of just compensation in U.S.Eminent Domain Law based on the context of China's expropriation and compensation."The development of law cannot be separated from reference".On the basis of comparative analysis,this chapter sets up the concept of a bundle of rights of property,explains the application of the fair market value standard in Chinese law,and constructs the compensation procedure that pays equal attention to both procedure and substance,in order to achieve the effect of "the stones of those hills may be used to polish gems."... |
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