The Protection Of The Administrative Law Of The Rights Of The Dismantled In The Urban Housing Dismantlement Of China

There are many problems in the urban housing dismantlement of China, the rights of the dismantled can not be protected effectively. Because of the mixture of the civil legal relationship and the administrative legal relationship, the joint effort of the administrative law and the civil law is needed to resolve these problems. Based on the important role played by the executive power and its strong intervention in the urban housing dismantlement or urban housing demolition, if there is a relative complete one among the relieves for the dismantled of lots of legal departments, this is from the administrative law, so, the key of the resolution of the urban housing dismantlement of China is to regulate and control the executive power. Furthermore, the quality of the urban housing dismantlement is administrative land acquisition out of public interest under the Constitution, so the protection of the administrative law of the rights of the dismantled must be strengthened and improved specially.In essence, the process of the urban housing dismantlement is the war among kinds of interests. The resources of power, capital and information are not equal between the government, developers and the dismantled, and the dismantled often have no choice to take part in the process of the dismantlement passively, so the dismantled, whose benefits are under the benefits of the dual pressure of the government and developers, belong to the vulnerable groups during the war. The right of property, residence and the right to know, to participate, to proposal, to supervise can not be protected effectively, and can usually be infringed easily and seriously.There are many problems in the protection of the administrative law of the rights of the dismantled, which lie in the shortness or lack of the laws and the system concerning in the main. Firstly, the quality of the urban housing dismantlement is not clear. Secondly, the legal effect of the administrative law concerning is deficiency. Thirdly, the administrative compensation has many omissions. Fourthly, the public interest is abused. Lastly, the channel of the administrative relief of is not clear.In order to improve the protection of the administrative law of the rights--the real right or property right in particular--of the dismantled, the theory about the protection of the administrative law of the real right is needed during the concrete construction of the system concerning. Although the theory is not systematized and logical at present in China, it is certain that, in order to build the complete system of the protection of the administrative law of the rights of the dismantled in the urban housing dismantlement, the real right and the executive power, the private right and the public power should be coordinated with each other, the property law and the administrative law should also be open to each other, in particular, the consciousness of right should be brought into the administrative law, and the executive power must have the limitation and restrain itself reasonably. Based on the theory and the learning and benefit from the experiences of other countries and areas, the concrete measures of improvement are as follows: Firstly, the traditional ideas must be changed, the broad and open mind is needed. Secondly, the quality of the urban housing dismantlement should be clear in the administrative laws concerning and the basic principles of the dismantlement should also be established. Thirdly, the system of the laws about the urban housing dismantlement, the administrative compensation and the administrative permission should be improved. Fourthly, the modern administrative procedure of the dismantlement should be built up and it is relatively useful to define the public interest through the objective procedure. Fifthly, it is relatively useful to define the public interest through the objective procedure. Lastly, the channel of the administrative relief must be cleared. The key to the resolution of the problems of the administrative reconsideration is to change the unfair and unreasonable procedures related. As far as the administrative proceeding is concerned, the fully displaying the role of the judicature is very important. The review of the reasonability must be brought actively into the trial of the cases about the dismantlement. The practical efforts should be made to safeguard the independence of the judiciary, including the independence of the court and the judge. In a word, the improvement of the protection of the administrative law of the rights of the dismantled in the urban housing dismantlement could also contribute to the realization of the social stability and the social harmony.