Study On Land Expropriation Tort Liability

With the rapid economic development and speed up the process of urbanization, land expropriation is widespread. According to an authoritative survey, since 2002, land expropriation tortious dispute has risen to the greatest focus of protecting rights of the peasants which is the most urgent problems of rural China. In this paper, with the base of civil law, administrative law, economic law and other related disciplines knowledge, we use various of research methods in attend to study on tort liability of land expropriation to avoid or reduce the phenomenon of the tort occurred in land expropriation. This paper first to define on what is the tort liability of land expropriation, pointing out that the tort liability of land expropriation refers to the legal responsibility that the charge people who has the levy right (the countries) exercise illegally that do harm to the land rights and interests of the relatives (farmers and collective economic organizations) should bear .then analysis on the composition of the tort liability Land expropriation in order to resolve the problem that the criterion of the tort liability Land expropriation .At the last of this paper we talk about the relief of tort in Land expropriation, and pointed out land expropriation tortious relief system that China should choice.The full paper consist of preface and four parts.The preface set out the reasons and significance of this thesis ,the status of land expropriation and legislative overview and the issue this paper try to resolve.The first part is to define on what is the tort liability of land expropriation. The paper first analysis on the basic characteristics of the land expropriation, that is the people who has the right to levy is especial, "public interest" purposes, mandatory, ownership changes, compensatory and statutory procedures; then, the paper summed up four types of the land expropriation which are beyond the "public interest" purposes of land expropriation, did not follow "due process" of land expropriation, did not give "reasonable compensation" of the land expropriation and complex (the collection of three types of tort before) tort. At the end, The article define on the tort liability of land expropriation which refers to the legal responsibility that the charge people who has the levy right (the countries) exercise illegally that do harm to the land rights and interests of the relatives (farmers and collective economic organizations) should bear.The second part is analysis on the composition of the tort liability of Land expropriation. First, the article points out that the illegality of the exercise as a constitute element of the Land expropriation tort liability, and that the illegality of the exercise refers to the tort exercise in land expropriation which beyond the "public interest" purposes, not follow "due process" or not to give "reasonable compensation "that violate the relevant provisions of the law, should be condemned; Second, the paper point out that fault is also a constitute element of the Land expropriation tort liability. The fault on the one hand assumes of the government's wrong will or the officeholder's intention or momentousness fault, on the other hand for the performance of the government and its staff's related matters illegal administrative actions and the illegal fact acts that under the government's wrong will or the officeholder's intention or momentousness fault in the land expropriation; Third, the paper point out the damage as constitute elements of the Land expropriation tort liability includes the damage to the collective ownership of land ,to the other land rights and to the ownership or other right of the clung on the ground; Finally, the article point out as constitute elements of the Land expropriation tort liability a causal link because of the special nature of the performance of the tort assume two aspects, in the primary aspects there is a direct causal relationship between the behavior and the consequences of damage, in the subsidiary aspect there is a indirectly causal relationship between the obligor and the damage.The third part we talk about the law relief of tort in Land expropriation. First, the article analyses on the basis of Land expropriation tort relief system which means the legislative relief mechanism of the Land expropriation tort. Land expropriation tort relief legislation based on the theory can be divided into the monobasic-mode model and the dualist-mode model; we should choose the dualist-mode model for the tort on land expropriation of the legislative basis for relief mechanism; Second, the paper talk about the mode of the land expropriation tort relief system. From the perspective of comparative law, the model of tort relief on land expropriation can be categorized into the mode of the judiciary-oriented and the legislature-oriented model, in consideration of China's basic national conditions, the legislature-oriented model is obviously more appropriate to us. Finally, the article discusses the responsibility of the land expropriation tort liability.The fourth part is probing on of the land expropriation of non-prosecution of relief ways to the land expropriation tort. The paper points out that relief channel of the land expropriation tort in addition to prosecution ways should also include non-prosecution ways. First, beyond the "public interest" purposes and did not follow the statutory procedures for land expropriation can learn from "alternative dispute resolution (ADR) mechanism"; Second, did not give reasonable compensation for land expropriation may wish to apply the traditional Civil mediation, arbitration and other non-prosecution ways. Finally we can also strengthen the villager autonomy intend to resist the astriction and the illegal conduct to the collective ownership of land in the land expropriation. Legislative system...