Research On The Property Rights Protection Of The Relocated Households In Urban House Demolition

As China's urbanization is accelerating, the demolition of house has become an important activity of urban construction and development. The demolition of house has indeed played a positive role in promoting urban functions and improving urban appearance, and it has also improved the living standards of residents and improved the urban infrastructure and public facilities, however, due to the imperfect system of house demolition laws and regulations, it has caused some property damage to the relocated people in the process of house demolition, and has caused great social contradictions. This thesis makes a theoretical analysis of the existing deficiencies of the house demolition system, puts forward the way to improve house demolition system, using the related law system of foreign countries for reference, and hopes that it it of use to protect the property rights of the relocated people.This thesis consists of four parts.The first part is an outline of the urban house demolition problems. It contains three aspects, namely, the concept of urban house demolition, the process of urban house demolition, and legal relations of urban house demolition. The author believes that urban house demolition is a general term of a series of activities as follows: in order to implement the urban development and construction projects, people in charge of the demolition demolish the houses located in the region of the state-owned land in accordance with the law, relocate the owners and lessees of dismantled houses and make some compensation for them. At present, the legal relationships of China's urban house demolition is a complex of various legal relationships, including the legal relationship of Administrative Licensing, the civil law relationship, property imposition law relationship, and administrative ruling law relationship.The second part is about the problems existing in the property rights protection of the relocated people and the causes. First of all, it expounds the existing problems in the protection of property rights of the relocated people. Property right is a fundamental human right entitled to the property owners and it is free of the restrictions, deprival and occupation of the country and other national entrusted organizations. During the house demolition, the property rights of the relocated people includes at least house ownership right and land use right. The existing problems in house ownership right protection include the strict restriction of house ownership, the eradication of house ownership, and unreasonable compensation in house demolition; The existing problems in land-use right protection include the evidence deficiency of the withdrawal of land use right, the improper process of land use right change, and lack of compensation for the land use right.Due to the above problems, the legitimate property rights of relocated people are infringed. For example, some failed to get houses to relocate, a large sum of compensation turned out to be only a small fraction; those who expected much but received only a little, and so on. An analysis of the reasons why the relocated people's property rights were being infringed is made. Reasons include legislative shortcomings, the content of laws and regulations conflicting with the top law, no distinction between public demolition and commercial demolition, the alienation of administrative power, the lack of hearing procedures, deviation of the judicial function and poor relief.The third part is the consideration and reference of the related legal system in typical countries. Considering the relevant legal systems of the USA, Germany, and Japan, the writer believes that the paid imposition and executive compensation principles in "Important Space Law" of United States–due process of law, fair compensation and the public use in the protection of private property rights are worthy of our reference; On the basis of the relationship between land and house, besides the perfect real estate ownership system, Germany also established the real estate property rights system of beneficial use, the core of which is"over ground right". The compensation for over ground right brought by the deprival of the real estate in German law has an important reference for us; In Japan, the procedures for land requisition compensation are very strict and have a wide range. Compensation fees are high, and in addition to cash compensation, there are other ways of compensation such as infield development, residential land development, migration agents and the projects agency, which we should learn from.The fourth part is about the perfection of property rights protection system of the relocated people in the urban house demolition process. The writer puts forward solutions of the above mentioned problems and reasons: firstly, improve the relocation legislation and develop a unified, "Urban House Demolition Law" and "Land Acquisition Act." The law should reflect the spirit of the protection of property rights, make specific provisions about urban house demolition, and establish land acquisition and house demolition system, so that it matches the property law. Secondly, distinguish between public and commercial demolition. In the legislation it should be clear that only in the public interest will it be possible to enter into public acquisition and expropriation procedures, and are administrative powers allowed to intervene. If it is not in the public interest, but purely commercial demolition, both parties should negotiate and settle it in accordance with civil law while executive power can not intervene, let alone an administrative enforcement; Thirdly, the functional return of government in the urban house demolition. The Government should withdraw from the unnecessary demolition in order to promote market-oriented reform of the demolition, implement correct supervision and regulation, establish of smooth channels of information transmission, and set up communication platform between the people in charge of demolition and the relocated people. The staff should gradually change from management consciousness to service consciousness in the process of demolition; Fourthly, establish of the hearing procedures. In the hearing process, listening to the views of the relocated people and making the most appropriate programs are in line with the legislative intention of the demolition laws and regulations and can thus guarantee the legitimate rights and interests of the relocated people, which can also reduce lots of contradictions emerged in the process of demolition. Fifthly, establish a fair compensation mechanism for the demolition. In the public demolition, relocation compensation belongs to executive compensation. The relocated people were unable to resist with the Government, thus a "full compensation" principle should be established and expand the scope of the demolition compensation, and establish a price evaluation system; if the two parties of demolition belong to a relationship between the main body of civil law, they should follow the principles of voluntary equality, autonomy, and honesty in "Contract Law" and should not"buy and sell by force". Sixthly, improve the legal relief system of demolition. The establishment of an effective legal system is a strong guarantee of the legitimate rights and interests of citizens, and is of particular importance in China's Demolition system. The author believes that we should abolish the administrative ruling in commercial demolition, strictly limit the application of forced demolition and improve the judicial relief in demolition. Through the establishment of a comprehensive legal demolition relief system, we can further protect the legitimate property rights of the relocated people in demolition.