Legal Study On The Compensation Of Urban Building Demolition In China

Numerous compensation disputes in the process of urban building demolition have attracted much attention of all circles in the society. The establishment of a more rational compensation mechanism has a profound and realistic significance, especially for the sake of protecting the legal rights of demolition parties, in the context of the on-going large-scale economic construction and urban modernization. This thesis explores the compensation system of urban building demolition from a legal perspective and it consists of five chapters besides the introduction and the conclusion.In Chapter 1, the author first introduces the concept, object and manners of the compensation of urban building demolition as well as the differentiations between compensation and damages. Then, the legal nature of the compensation is discussed following a general introduction to the theoretical divergences.In Chapter 2, the author explores the theoretical basis regarding the compensation system of urban building demolition hoping to provide a clear and logical support for the next three chapters. The theories include social obligation of ownership, free disposition of real rights, protection of private property, together with the principle of fairness and justice.In Chapter 3, the author analyzes the core of the compensation of urban building demolition, which triggers the most frequent disputes in practice. The aforesaid core mainly does with the scope and standard of the compensation. Under the existing legal framework, the compensation solely covers the buildings, appurtenance to realty and certain fees, but excludes the national land use right. With the establishment of paid land use and the rising awareness of right protection, the compensation concerning land use right becomes increasingly prominent. The thesis proposes the land use right should be included in the compensation scope and that the administrative compensation should be definitely stipulated. Furthermore, the existing compensation standard and market appraisal method can hardly compensate the building owners fully and fairly.In Chapter 4, the author discusses the compensation procedures in the process of urban building demolition, and finds that both the demolition decision and the compensation process embody administrative compulsoriness. The participation of the building owners is unduly restricted and even deprived. Besides, the existing relief, i.e. administrative verdict and administrative litigation has certain limitations.In Chapter 5, the author puts forward the next suggestions regarding the compensation system of urban building demolition. The Urban Building Demolition Law should be enacted as soon as possible and define explicitly commonweal demolition so as to cut down abusing"common welfare"in demolitions. The compensation scope and standard should be modified. Herewith, the national land use right should be valued and compensated explicitly; the full compensation principle should be adopted. A due process of compensation of the urban building demolition should be established, and compensation disputes should be governed by judicial final settlement rather than administrative verdict.