Discourse On Public Power And Private Rights Under The View Of Land Eminent Domain

Issues concerning land eminent domain are heated and popular topics during past several years, which is reflected by the constitutional amendment of year 2004. China has formed a comparatively integrated system of land eminent domain through the legislation of relative laws and regulations. However, the writer holds that among the whole laws and regulations concerning land eminent domain, there is great contradiction among the concrete rules in Constitutional Law, Law of Land Administration, Law on the Contracting of rural land and Implementation Regulations of Land Administration Law, which is not only a technical problem, but reflects the comparative relationship between public power and private rights.This essay has four parts.Part one introduces Chinese present system of land eminent domain, including present eminent domain mode and character. Then this part analyzes that land eminent domain actually does harm to land ownership from the perspective of ownership. In the end this part discusses the contradiction among present legislative rules relating land eminent domain.Part two is about comparative analysis of land eminent domain system. This part firstly looks back upon Chinese historical land systems and the land eminent domain system formed after the foundation of PRC, and then concretely analyzes the present land eminent domain system of America, Canada and Germany. At last this part makes comparative analysis of the public interest purpose, compensation standard, mode and judicial relief of land eminent domain. From the above-mentioned, we can see that in Chinese land eminent domain system, publicpower is too strong while private rights can't get basic protection.Part three is the analysis of the advantages and disadvantages of land eminent domain. The writer briefly analyzes the active influence and historical meaning of land eminent domain to social development after the foundation of PRC. The writer holds that the land eminent domain^ set on the basis of depriving peasants of their land ownership leads to the following four flaws: Firstly, peasants' rights are greatly damaged; Secondly, rural land dos not get protection due to land eminent domain misuse by governments; Thirdly, land eminent domain becomes the source of corruption; Fourthly, government's land eminent domain leads to the market monopolization of the initial construction land of urban real estate, which causes many flaws and risks to Chinese real estate industry and the whole domestic economics.Part four is the end of the essay. This part considers present several topics concerning land eminent domain: whether to "put into practice a strict land administration system"; whether to give the appreciation part of land to public; whether collective land has the function of social security and whether the functions of governments should be administering cities and making profits through land.According to the analysis made by this essay of land eminent domain, the epilogue comes to the conclusion concerning relative consideration of relationship between public power and private rights.