The Civil Law Protection In Eminent Domain In China

Eminent Domain or Condemnation means the government gives the house owner or user proper compensate or provides a room for to move for national construction , urban renewal, rectifying the city's appearance and environmental protection, etc. Eminent Domain is a sensitive and general social problem, which concerns people's vital interests and implementation of the urban planning. The building contains the original owner or user's labor, even the people's basic material conditions for existence and produce. Therefore, the proper compensation for losses of Eminent Domain must be offered. Eminent Domain mixes the administrative behavior and civil behavior, and civil law takes right protection of the civil subject as its aim and the centre. It's better for the house owner to select civil law to protect. Eminent Domain should be taken apart to seek the best civil protection .The article specializes the civil law protection of Eminent Domain,and stresses its adequate compensation. The article includes five parts: Part I addresses the actuality and character of Eminent Domain, I consider the condemnation is universal and its dispute is complicated, then discuss present troubleshooting and drawback of the troubleshooting. The condemnation mixes the administrative legal relation and civil legal relation, which is based on the civil behavior with the negotiation between the equal civil subjects and interfered with the administrative's power at the same time. The particularity of Eminent Domain makes administrative statute to be unable to solve condemnation dispute fundamentally, unable to protect the interests of people totally,either. Part II researches the relevant systems of the civil law with Eminent Domain. I analyse the condemnation and the property system of the civil law especially, explain the important relation between the condemnation behavior and the system of right to land-using & house ownership. the "condemnation compensate & place agreement'" is a civil contract. Its content and form should be consulted and confirmed by both parties according to the principle "freedom of contract". When above-mentioned civil action totally is fulfiled, the administrative purpose will be reached. Part III mainly discusses the question that the method of civil protection with the property and the condemnation contract. Because the property in land belongs to the state, the house owner only has the right of land-using, the property protection of condemnation includes two respects : the protection of property ownership and the right of land-using. At present, the protection of the land-using of the house lies in the evaluation of the land and its compensation, and property ownership protection is the basic point and the core of private right idea, which compensation not only to the owner but also to the user. The contract protection of the condemnation is protection of creditor's right compared with the real right protection. The "condemnation compensate & place agreement" is a civil contract .The state should protect it according to the basic idea of civil law, self-rule and bargain-free. Its content and form should be protection according to "contract law" and "general rule of the civil law ".The state should protect the party's free will and explain the contract with seeking sincere principle. Part IV describes the proper compensation. I think compensation should be abundant, which should regard the appropriate real estates market price of the house as the compensation standard and by the due process of law, and the user of the house should be compensated.Part V,on the foundation of the above-mentioned research, the article combines the experience of the some countries & regions and chinese economic development & social reality, explaines the drawback of current law, and gives more concrete legislative suggestion. I take the civil factor from the condemnation which mixed civil and administrative nature ,analyze the more relevant countries and regions' legislation, in order to supplement the public law from pr...