Probe Into Some Issues Of Commonweal Collection In China

The ancient collection system has gone through a long period from its advent to its development today. In every country across the world, comparatively mature theoretical and legal systems have been constructed. The commonweal collection system in China was constructed rather late, and it's still incomplete in legislation, but in reality, various collections take place frequently. Due to the lack of the regulation concerning the cognizance procedure of the public interest and the lack of the rigid procedure control on the collection process from its decision to the execution as well as the imperfection of compensation system, illegal collection and arbitrary invasion of the lawful rights and interests of those who have been imposed frequently happen, which results in abundant social issues. In recent years, continuous research has been probed among the domestic theoretical circle and some contributions have been obtained. Based on the results of the former research, this thesis also delves into the same problem, in an attempt to express the cognition and comprehension regarding the commonweal collection and to present some immature opinions.The thesis mainly discusses four issues of the commonweal collection in China: The first issue is centered round the validity of the commonweal collection. Public purposive ness is the basis of commonweal collection."For the public interests"is regulated as the only necessity for the commonweal collection in the legislation of every country. Domestic and international theoretical circle has had a broad and deep discussion on the definition of"commonweal collection", discovering the connotation and characteristic of public interests from different aspects. According to the author, in spite of the uncertainty of public interests, its connotation and characteristic can still be mastered from the following aspects, i.e. , the interests should be shared socially, the interests should be necessary, the main body should be benefited directly, the interests are not for seeking for profits, the interests should be relative, the reality of the interests is realistic, and the interests should be achieved depending on proper procedures. The thesis insists that public interests should be defined according to legislative procedure, administrative procedures and judicial procedure, by making full use of the function of regulation of the procedures, for entity definition cannot be made for public interests.The second is about the issue of commonweal collection. The thesis introduces the procedures of commonweal collection around the world and puts forward some suggestions on perfecting the procedures of commonweal in China on the basis of analyzing the procedures of commonweal in China and the problems exist. According to the author, firstly, to perfect the collection decision and execution procedure, the following should be followed, i.e. proper procedure should be established, review mechanism of public purpose should be established, obtainment procedures for non-public interests and pre-collection discussion and negotiation procedures should be established, announcement, publication and deposition procedure should be established. Secondly, compensation procedures of collection should be perfected by establishing the market evaluation mechanism of compensatory amounts. Finally, canceling the verdicts of the administrative departments, extending the fields of controversial law cases for courts, canceling reconsideration, and unceasing collection during the litigation can perfect juridical review procedure of collection.The third works mostly on the compensation of collection. This chapter above all introduces the regulations of compensation concerning the commonweal collection among various countries, with an analysis of the present situations and current problems of compensation existed in China. According to the foreign regulations and attributions of academe, this chapter believes that compensation system of collection in China can be consummated in the following aspects: Firstly, criteria for compensation should be established and improved step by step in the light of the fair-and-square compensation. Secondly, ranges for compensation ought to be extended broadly, including scope concerning the subjects who should be compensated as well as the loss of property which ought to be redeemed. Thirdly, various measures for compensation can be wielded flexibly, such as bond or share compensation, substitute compensation, endowment insurance, unemployment insurance and cultivation funds. In addition, priorities of those who have been collected should be guaranteed, embodied in the priorities of allocation, purchase, tenancy and obtaining employment, which not only ensures the maximum compensation for the loss of those who have been collected when their rights have been invaded, but also protects or increases the beneficiaries of public interests.The fourth deals with right of withdrawal which is performed by those who have been collected. This chapter firstly introduces the application of those who have been collected for right of withdrawal, right of redemption and rotation in Taiwan, France as well as German. Based on the analysis of the above regulations and preoccupied with the current situations in China, a proposal is put forward for establishing the regulation that the landowners who have been colleted under certain conditions can apply for the right of withdrawal in the commonweal collection system. In addition, the necessity and feasibility of the regulation are justified and its system is also designed.