Land Expropriation System From The Perspective Of Civil Law

Land expropriation is a modern land of a very noteworthy. The problem is that land expropriation law on the issue, and the regulation of private law the right perspective is narrow and absurd, land acquisition is necessary is the prerequisite for the public interest, the public interest must be consistent with the overall interests of society, and in land acquisition legislation implementing the executive power-based philosophy is unscientific and levy admission system as a restriction on ownership exists, and is used by exceptions to the principle of the right to absolute rule, the consequences of its operation is in the material rights movements. The author attempts to land acquisition system for the analysis of the Civil Code meaning logical starting point, from the perspective of China's Civil Code existing land acquisition system for the shortcomings interpreted with a view to finding a Civil Code in the future of China to build in the protection of private property rights for the idea of the value of the land acquisition system for the approach roads.The full text is divided into three parts:Land expropriation is the first part of the civil law system content analysis, and in this part, the author of the land acquisition system in the general cognitive theory on the basis of the land acquisition system connotation of the Civil Code. Land acquisition is in the public interest that the country needs, in accordance with the provisions of the law on land ownership to make them compulsory deprivation and compensation system. Land acquisition system features five main areas: public service, compensatory, procedures, mandatory, changes in property rights. The land at the core of traditional levy system to a modern collection system change is a legislative idea from the absolute protection of private rights to the balance between private rights and social and public interests, protect the concrete manifestation of change. Of charging system look at the history of China's reality, I believe that the economic situation in our society is a "free market economy before" levels: Due to historical reasons, our state functions has always been extremely powerful, state intervention has always been extremely strong, China's private law concept private law and the spirit is still very weak. As for the promotion of the concept of social welfare and state compulsory nature of the system, owing to historical and cultural reasons has been deeply rooted in the concept of land acquisition, it is not appropriate to emphasize again the contrary, should be given the necessary constraints. We need to protect private property rights "sorry state" stage. Land acquisition issues involved, including the departments of the Constitution, civil law, economic law, administrative law and criminal law and procedural law, but only its legal consequences would inevitably lead to property rights we must make changes in its regulatory system to protect private property rights this point, the Civil Code in land acquisition regulations on the issue of when the right - not, it can also say land acquisition is a legal relationship between attributes of the Civil Code, the sum is in the following four areas: public welfare purposes, the property rights movement, control procedures, compensation consensual sexual. The land acquisition law is the first right of the legal relationship of the participants, that is, it must first is the mainstay of the legal relationship. China's land acquisition laws, including the main body of the tripartite relationship: national, land acquisition request of owners (land units), the eradication of land dominated by the land owner. The need to be further defined right of the land is dominated by the eradication of land owners. As members of the collective farmers in land acquisition laws should also be in a relationship right of the position. If the enjoyment of land ownership "collective" land use and the enjoyment of the benefits of collective property rights of land acquisition at the same time as the rights of legal relations in the main, then levied on the compensation inevitable "respectively compensation" manner. "Respectively compensation" must be replaced by "integrated compensation," and this is the enjoyment of land ownership "collective" land use and the enjoyment of the benefits of collective property rights of land acquisition at the same time enjoy the right to legal relations in the main body of the status decision. Collective land to the peasants the land for building the process, farmers should share the fruits of industrialization and urbanization process, there should be conducive to narrowing the gap between urban and rural areas rather than expanding, therefore, it should be a fair, market-oriented approach to determine the value of land acquisition compensation standards.The second part of China's current land acquisition system Interpretation of the main drawbacks of the Civil Code. China's current land acquisition system resulting from a supremacy of national interests, the weakening of personal interests, we need to re-examine Born Out of the planned economy era, the current land acquisition system. In this part, the author from the perspective of the Civil Code to read the current land acquisition system's main drawbacks. China's current land acquisition system lacks land for the purpose of public demonstration public welfare mechanisms and review mechanism, which is not conducive to be imposed on people protection. On the other hand, the rights of the original principal clearance unscientific lost internal support systems. Land-use through empowerment are generally set by the Usufruct to achieve. The principle of the Law on Real Right, Usufruct used as a set limit property rights, the landowners are the statutory limit Property owners enjoy the benefits of human rights can be used outside the scope of the remainder of empowerment. Land owners should respect the legitimate farmers use Usufruct, the state levied a new owner, but also have the same benefits with respect for property rights obligations. Existing land acquisition system from the point of view of private law, not state access to rural collective land use on the basis of the legitimacy of Beneficial Interests, has become a national Usufruct violations farmers use the tools. After all, collective ownership is the main statutory levy was, because the system deficiencies have caused "clearance"; Usufruct people will use it simply does not have access to the dominant position of charge, in the existing land requisition system in a "vacancy." In the face charge in the original land rights of the legitimate resistance was only in the prevention of illegal violations of property rights under the purpose to enjoy the "right to know" and "the right to question" the procedural manner of judicial relief. Property rights and compensation in the link between land acquisition laws in the perspective of the Civil Code is a legal relationship between two-Services: Private ownership has accepted obligations has, of course, should enjoy the specific compensation standards in the process of decision rights, the principle of autonomy should apply to a desired way of determining compensation customs matters. Therefore, I believe that this is the land acquisition law in the relations between the "limited autonomy."Part III of the Civil Code is the future of China's land acquisition system in the building. Modern country ruled out of the main private law to protect the legitimate rights and interests of the needs of property, land acquisition will be conducted on a pre-qualification process. The focus is on land requisition land requisition procedures and restrictions on the right to levy local participation was, therefore, Australia and France can learn from the model relevant legislation. The author believes that the Civil Code should be in the name of protection to property rights in land requisition procedure initiated by the front part of the land requisition were given to the "right to know" and "question", "right to be heard" and the "right to sue." The definition of the public interest issues, the authors do not support broad-defined manner, causing a general legal concept of the connotation and denotation not clear, the law applicable in virtually on the course was a very broad interpretation, and in the current situation of China's land acquisition, administrative and judicial arbitrariness will wantonly will intensified; The list of the definition is a form of closure, not open, the law is clearly not conducive to the development of flexible; Therefore, a compromise should be used to define the way. The legislative compromise-modern mode is technically legislative enactments in the past in a mature performance that can overcome the list of rigid, and maintain a flexible development of the law, but also to overcome the broad-high degree of uncertainty, so that the law can be easy to handle and control the swelling of the executive and judicial arbitrariness wanton, so it is desirable. I believe that should be the establishment of a single village as the main body to the collective land ownership system, and as a member of the collective farmers through the exercise of collective land usufruct property rights, the collective realization of all the land in the possession, use, and the proceeds. Usufruct collective land use itself can be punished in order to achieve its exchange value. As its lead to the eradication of land acquisition, land use Usufruct should become objects can be charged with Usufruct should be independent of the collective owners of the right to compensation as a separate person. At the same time, the links in compensation, collective land ownership and land use benefits of collective property rights are property rights, damage to property rights should be given to the corresponding fair compensation, property rights belonging to the land requisition compensation should be compensation. Compulsory land requisition land only guarantee of property rights transfer or eliminate identified, the damage does not affect the rights of the nature of property rights. Property compensation should implement the desired principle that the autonomy principle. Regardless of the nature of land acquisition system is how awareness of the links in compensation, land acquisition legal relations in civil nature is identified. The civil legal relationships in the form of property damages should be determined by the relevant are the main principles of the two sides to reach a consensual.The conclusion, I believe that we should be to establish the right of collective land at the core, and then to front restrictive procedures and desired compensation relief for their protection. They were obviously need legislators from the customary law of thinking out through civil means to fulfill them. Although the land acquisition system is a public-private law at the same time involved with another entity of the norms and procedures of the complex system of norms, but the core of this system exists in civil law property rights protection regime, and the core of this scientific understanding is precisely the legitimacy of land acquisition system of the original basis points.