On The Defects And Improvement For Administrative Expropriation System

Countries in the contemporary world adopt the attitude of ensuring and limiting towards the right of property, how to ensure the right of property at large while limit it and how to find the combination of the two aspects to reach the relative balance of public benefit and private benefit are the purpose of administrative expropriation system. Chinese current administrative expropriation system has established during the times of planned economy, which isn't mature in aspects of legislation and practice. The same administrative expropriation systems are applied in the course of requisitioning land for both purposes of public benefit and private benefit; moreover, the principle of incomplete compensation is applied in the course of requisitioning land. This defective administrative expropriation system can't ensure the right of property radically and can't meet the need of development of market economy, therefore, to establish the rational administrative expropriation system is significant.Part-1.General Theory for Administrative ExpropriationWith the development of society, the complex and various social affairs urge that the government has changed from the night watchman who hasn't interfere the public life to the one who positively has promoted the increase of the civil welfare, therefore, the government has to limit the private right of property by means of administrative manner for the need of public benefit. Administrative expropriation refers to compulsory and compensated expropriation and use of the properties which don't belong to the state by the state by virtue of the subject of administration for meeting the need of public benefit, which is one measure of state's macroeconomic control as the behavior of the state's public right and direct affects the effective exertion of government function and the healthy and orderly development of market economy.I. The definitions to administrative expropriation by foreign countries and Taiwan Region of ChinaLooking at the definitions of administrative expropriation by foreign countries and Taiwan Region of China, we can find that the they all emphasize legal deprivation or restriction of private properties for the purpose of public benefit and the compensation, etc, but they are different since they the scope of the involved property and rights of administrative expropriation are different, for instance, some involves the ownership of estate and real right, some involves the ownerships of chattel and estate and other real right and some involves all rights of property possessing value.II. Chinese definition of administrative expropriationIn China, the name and definition of legal deprivation of the right of property are in chaos, for instance, the administrative expropriation, public expropriation, public collection, collection, and administrative collection, etc, which isn't unified in aspects of theory and legislation. Although the connotation of administrative expropriation emphasize that the behavior accords with the public benefit and is legal, the deprivation of the right of property and the compensation, the difference is distinctive.Part-2.Compare with the administrative expropriation systemsI. The establishment of administrative expropriation system in France, Germany and Taiwan Region of China One of the fundamental purposes of the research on foreign relevant system is to find the principles in the administrative expropriation system of these countries for utilizing and assimilating the reasonable and beneficial elements when we improve and perfect Chinese administrative expropriation system.II. The important elements of adapting laws shown in administrative expropriation system in each countryBasin on the comparison and analysis of the administrative expropriation systems in France, Germany and Taiwan Region of China, we can conclude the common principles of administrative expropriation system in these countries, that is to say that the conditions of administrative expropriation includes the following ones: firstly, administrative expropriation should base on the need of public benefit; secondly, it should follow the principle of proportion; thirdly, it should possess definite legal backing and be carried out according to laws; fourthly, it should be carried out basing on the procedure regulated by la; fifthly, it should be carried out after just compensation are provided. These five conditions can't be separated from each other and none of them is dispensable.Part-3. An analysis on the current situation for Chinese administrative expropriation systemI. Being lack of complete legal system in the administrative expropriation systemThere hasn't been one unified law of administrative expropriation in China until now and there are only separated relevant regulations in a few specialized laws and regulations; among these, the legal system concerning requisition land is perfect comparatively, which is important part of Chinese administrative expropriation system, but there are still some defects concerning the regulations. Other specialized laws and regulations are weaker and even they collide with each other; moreover, there aren't clear definitions of public collection, expropriation nationalization in China, so the legislations cross and overlap each other. All these phenomenon show that the confusion of legal system concerning administrative expropriation.II. The directing idea of administrative expropriation being conservativeForeign relevant legislations concerning administrative expropriation base on the protection of rights of private property, which is distinctive especially since the system of proper compensation is established to ensure the rights of private property; however, since the ideas of government official is first and the rights of citizens should absolutely submit to the rights of state, the legislation concerning administrative expropriation possesses strong taste of power and neglects the rights of owners of the property requisitioned; moreover, it emphasizes on the realization of the rights of administrative expropriation and the realization of public benefit, and it doesn't possess the standards for compensating or its standards are too low, which all show the neglect of legislation concerning the rights of private property.III. The legislation concerning administrative expropriation being too principled and generalThe administrative expropriation composes of a series of concrete behaviors, and the law should regulated from the establishment of the law of administrative expropriation to application of expropriation, investigation, authorization, compensation and the final transition and occupation. In China, the regulations concerning administrative expropriation are too principled and general and the procedure is blurring without the real maneuverability, which lead to the frequent phenomena of nonstandard abuse of rights.IV. Being lack of unified standard for judging public benefit in the administrative expropriation legislationThe purpose of administrative expropriation is to pursue public benefit, which is an abstract concept and an concept for judging value and should be considers carefully basing on concrete situation; moreover, it is a whole standard for judging but not the random one, so as to avoid the too much freedom in judging public benefit, so the legislation concerning administrative expropriation should regulate the legal standard for judging public benefit; however, there are only the principled regulations in Constitution and Land Administration Law in China.V. The compensative regulation in administrative expropriation legislation being imperfectCompensation is the important part of administrative expropriation system, and protection of the rights of private property are supported by Constitution clearly, which provides the clear base of Constitution for specialized administrative compensation; however, the regulations concerning the principle, scope, standard, procedure, etc in current laws are blurring, which results in the ineffective compensation in practice.â…¥. Being lack of just procedure article in administrative expropriation legislationThe administrative expropriation is the behavior with large scope of free judgment, and administrative organs has more discretion for the judgment of public benefit or the Compensation for administrative expropriation; however, there is no legislation concerning the procedure of administrative expropriation in China; although there are relevant regulations in Land Administration Law, these regulations are too principled without maneuverability, which can't restrict the behavior of requisition land and prevent the legal rights and interests of owners of the land requisitioned from violation.VIII. Being lack of regulation on legal responsibility of illegal expropriation in administrative expropriation legislationThe rights of administrative expropriation is the combination of rights and obligation, and the rights will be out of control if there is no concrete legal responsibility when they violate the law; the rather that the criterion for the rights of administrative expropriation isn't perfect, for instance, the chapter of legal responsibility in the Land Administration Law emphasizes the punishment of legal behavior of users of land and neglects the punishment of legal behavior of people who requisition land.Part-4. Perfection of the domestic administrative expropriation systemI. Perfecting the legal system of administrative expropriation The Constitution has provided the expropriation of private property of citizens with the basic system guarantee, and provides the low-level legislations with base of constitution, so the unified administrative expropriation can be established. Independent laws can make suitable and flexible regulations on condition that follow the general regulations of administrative expropriation.II. Intensifying the identification and interpretation for public benefit by legislationAlthough Chinese Constitution and other laws prescribe that the precondition of administrative expropriation should be to meet the need of public benefit, they don't possess the relevant regulations concerning the cognizance of the need of public benefit. China can use the scope of public benefit in the suggestions in Property Law for reference, adopt the legislation techniques of enumeration and generalization and prescribe the expropriation which doesn't accord with the public benefit as requisition by purchase.III. Perfecting the procedure of administrative expropriationThe procedure of administrative expropriation has been the weakness in Chinese legislation concerning expropriation, so it is necessary to especially emphasize that expropriation should be regulated by law and follow the procedure regulated by law while the Constitution has introduced regulations concerning the expropriation of private property.IV. Defining the standards for compensationMany countries compensate for administrative expropriation by means of money with other assistant means. China should positively explore in the new method for compensation, namely, we can take the measures of the material compensation, creditor's rights or shares compensation and social security, etc as complements while we take money compensation as major one.