Legislative Research On The Protection Of The Interests Of The Relocated People In Demolition

As China's urbanization is accelerating, the demolition of house has become an important activity of urban construction and development, but it is also accompanied by a large number of disputes and conflicts. In the course of demolition, a variety of forces and factors are functioning, and the three most important ones are as follows: government departments, people in charge of demolition and the relocated people. Compared to the Government and the developers, the relocated people have been in a weak position and therefore they are disadvantageous in the game of urban house demolition. In recent years, it often happens that the property rights of the relocated people have been violated even their personal rights violations frequently occur. Real estate developers forced residents to accept the demolition by ways of cutting off the electricity and water supply, intimidation and even kidnapping, and other serious assault against the person rights, however due to the lack of protection of the their own rights and interests, sometimes the relocated people only went so far as to commit suicide, and other extreme ways to express their protest against the current urban house demolition system. Reasons for the poor performance of the protection of interests of the relocated people are various, and the legislation reason is undoubtedly the most important one. Due to the current deficiencies of existing legislation, the potection of the inerests of the rlocated pople must be treated carefully in the new house demolition legislation law. Structurally, the thesis is divided into four parts:First of all, through the study of China's legislation of urban house demolition it can be found that after the founding of the first demolition regulation "About the ways of land acqusition for national construction" until the enaction of the " property law", China's legislation for the protection of the interests of the relocated people was strengthening step by step, but due to the defects existing in the demolition system setup, together with the strong executive power in the demolition process, the interests of the relocated people can not be effectively protected. For that, there are implementation factors, but legislation is the root .Secondly, why the legislation are unable the relocated people, we can find reasons from two aspects: On the one hand, in the legal concept, the better-law tradition of public authority in making legislation appears to be too strong, compared with public power, private rights of the relocated people appears to be too weak, so that their rights are ignored in the legislation; On the other hand, the demolition activities are carried out in a way of executive permission,without realizing that the demolition was a kind of executive acquision activity based on the interests of the public, therefore the commercial demolition and public demolition are not distinguished and the interests space of the relocated people are furthur compressed. The implementation of "Property Law" restores the essence of demolition, but it also needs relevant to support legislative amendments to reflect the spirit of the protection of private rights.Thirdly, through analysis of the existing legislation it can be seen that there are still many problems in the protection of the interests of the relocated people, mainly reflected in: a low-level legislation, so far, China has not a basic law of normative acts of demolition.The existing"Urban House Demolition Regulations", "Urban House Demolition executive ruling rules","Urban House Demolition evaluation guidelines"belong to executive rules and department regulations, while the demolition has been involved in the relocated people's civil rights, and the existing legislation is contrary to the relevant provisions of"legislation law". The relocated people are in a weak legal status, under the existing legislation, after the people in charge of demolition have got demolition permits, the relocated people no freedom not to sin the demolition compensation agreement, even if the relocated people applied for a rule, the final result is also demolition, and if the demolition is not carried out in a given time, the related department would demolish by force. In several key procedures of demolition, the government has the essential power, including administrative licensing right, administrative decisions right, administrative enforcement right, administrative supervision and inspection right and administrative punishment right. Under the idea of government-run-the city, it reflects the will of the government too much, it is difficult to protect the interests of the relocated people. demolition compensation system is unreasonable and lack regulations on the principle of compensation. The scope of demolition compensation is too narrow, compensation standards are low, the compensation way is single, the evaluation system is imperfetc, which results in that losses suffered by the demolition can not be compensated in full. Demolition procedures are improper, mainly reflected in the lack of democracy in procedures for demolition permits, nonstandard administrative enforcement procedures, Ruling set up procedures for lack of form justice in demolition ruling procedure setting, lack of judicial relief procedures.Finally, and most importantly, analyze the shortcomings of existing legislation to identify the reasons for this, and the fundamental aim is to legislatively perfetct the protection of interests of the relocated people. "Property Law" clearly expounds the administrative properties of public demolition, the commercial demolition which is not based on the public interest will be seperated out house demolition, and the house demolition process will become: the definition of public interest– the house demolition - demolition compensation. This is in line with the constitution for acquisition, and provides the constitutional basis for the demolition and provides a framework for the revision of demolition regulations. On this basis, the house demolition must address four issues: First, a proper definition of the public interest.The legislation should set out the specific scope of the public interest, and reveal bottom provisions to deal with the possible exceptions in reality. In order to prevent the abuse of public interest , the power should be limited to the provincial people's congress or its standing committee; Second, the rational distribution of government functions. As a representative of the public interest, the government should ensure the public interest as well as the interests of the relocated people, and its functions can not go beyond the following aspects: determine a reasonable scale of demolition, organize demolition, promote public participation, supervise and regulate agencies, protect the disadvantageous groups, oversee commercial demolition. Third, perfect a fair and just compensation mechanisms. Establish the "fair and appropriate" compensation principle. The market pricing method should be choosed to determine the amount of monetary compensation for demolition. Price evaluation agencies must have a legal qualification, and hold responsibity of the results of evaluation. Protect the relocated people's living conditions, and for the way of compensation and the resettlement house, the relocated people have the right to choose. Those for whom same can not be achieved for the resettlement, they should be given special grants. For poor families with house and living difficuties a minimum guarantee provision should be developed. Fourth, establish and improve due process, pay attention to the balance public interests and private inrerests in terms of value tendency and coordination of fairness and efficiency, regard open, relative participation as the principle and reflect the protection of the relocated people in terms of the identifying procedures of public interest, notice procedures, hearing procedures, pre-compensation program, the relief program, a mandatory procedure and so on.House demolition is an important issue concerning property protection rights. The protection of the interests of the relocated people is an important topic in a harmonious social construction. This thesis makes an analysis from the perspective of improving the legislation, in order to do some helpful thinking for reference.