A Research On The Inverse Condemnation Of The United States And Its Enlightenment To China

The Fifth Amendment of the Constitution of the United States states that "No person shall be... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." According to this clause, eminent domain must satisfy certain conditions such as public use, due process and just compensation. Along with the development of the theory of eminent domain in the United States, the inverse condemnation was established. The conception, constitutive requirements and remedies of inverse condemnation were established by a series of classic and typical cases in the United Stated. With carefully analysis of the related laws, regulations and the administrative conducts, we will find that there are also similar situations which should be recognized as inverse condemnation.in China. Therefore, we should make deep research on the actual situations of inverse condemnation through the study and use of theory of eminent domain in the United Stated in order to provide essential theoretical foundation for the establishment of inverse condemnation in our country. In modern China, a thorough study on inverse condemnation of the United States and an attempt to introduce inverse condemnation into China has both theoretical and practical significance.This dissertation will mainly research the inverse condemnation of the United States, it consists of conception, formation, development, major types, constitutive requirements, identification and remedies of inverse condemnation. Besides, it will put forward some ideas on how to construct our inverse condemnation according to the facts that there are many provisions that have the nature of inverse condemnation in china's current regulations and incidents that are in conformity with the theory of inverse condemnation. Besides summary, it has six parts as its main contents: Part One analyses the theoretical basis of inverse condemnation. It mainly discusses the origin of inverse condemnation and the review of present condition of inverse condemnation both at home and abroad, it puts forward the frame and the research methods of this paper. It also analyses the historical background of inverse condemnation in the United States, and points out that there are many provisions that have the nature of inverse condemnation in china's current regulations and incidents that are in conformity with the theory of inverse condemnation in our daily life.Part Two elaborates on the details of inverse condemnation. It mainly discusses the conception, formation, major types and identification process of inverse condemnation. It analyses how inverse condemnation was first established through the case of Pennsylvania Coal Co. V. Mahon in the United States. It also points out that possessory takings and regulatory takings are the two most important kinds in the six types of inverse condemnation.Part Three elaborately analyses the identification of inverse condemnation. This part mainly discusses the constitutive requirements and identification process of inverse condemnation, and elaborates the specific constitutive requirements of possessory takings and regulatory takings respectively through the case of Andrus V. Allard and the case of United States v. Causby.Part Four analyses the remedies of inverse condemnation. This part mainly discusses the remedy ways and procedures of inverse condemnation, it points out that along with the development of theory of inverse condemnation, "declaring invalidation of regulations", "giving compensation to property owner by money", "application of the ripeness doctrine" and "the application of the abstention doctrine" are established in order to relief the property owner that have suffered from government's inverse condemnation conducts.Part Five makes an evaluation on inverse condemnation in the United States. It mainly discusses the features of inverse condemnation, and its relationships with the protection of property rights and the due process of constitution. It also analyses the handling modes of the relationship between legislation and judicial in the application of inverse condemnation. It finally points out that the establishment of inverse condemnation not only improves the eminent domain in the United States but also provides reference to the research and the construction of inverse condemnation in other countries or districts in the world.Part Six elaborates the significance of inverse condemnation for china's rule of law. It mainly analyses the present condition of inverse condemnation in China and the problems during the establishment of China's inverse condemnation and construction of inverse condemnation with Chinese characteristics. Moreover, it puts forward some ideas on how to construct our inverse condemnation mechanism, that is the conception of possessory takings and regulatory takings and the remedy ways of inverse condemnation need to be clearly defined in China's Real Property Law. About the connotation of inverse condemnation, it points out that we may define the conception and constitutive requirements of possessory takings and regulatory takings respectively in China's Real Property Law. About the remedy ways of inverse condemnation, it points out that the ripeness doctrine and the abstention doctrine have no feasibility and declaring invalidation of regulations has too much difficulty to be used in China, therefore, giving compensation to property owner by money should be the most important relief way for the victims suffered from government's inverse condemnation conducts.