| In recent years,accompanied by the acceleration of urbanization process the illegal construction has attracted more and more social focus as subsidiary phenomenon.The situation of its crazy growth has not only become the main reason of the cities' dirty,messy, inferior and traffic jam,but also has disturbed the steady order of China's real estate transaction market.Relative to the seriousness and importance on the issue of illegal construction,currently there exist many deficiencies on theoretical researching and legal regulation about this problem in China.From the aspect of theoretical researching,presently the scholarship hasn't defined the feature of illegal construction and the involved legal relations expressively and explicitly,also the significant analysis to foreign experiences and the positive review to the native problem are not available;as far as the legal regulation is concerned,the legislation nowadays mainly regulates the illegal construction in view of public law,the phenomenon of using administrative means to take the place of civil means is very serious.Even during the administrative procedure,there is not many law and regulations that can supervise it effectively.And the situation has been shown that it seems the standardization documents such as law,statutes and regulations have created their own system.The disorder on theory and legislation not only lead to the embarrass condition that many cases lose the direction in practice and many profits what should be protected are ignored and the fair value has been disobeyed but also easily to generate social confliction and not good for the realization of social steadily and harmony society.In the author's opinions,to resolve the illegal construction issue more legally and reasonably under present system primarily we need to clear out its feature legally.At present China is particularly short of civil law researching and legislation.Especially nothing further discussions about whether the illegal construction can be the subject matter of ownership,whether it can be in circulation and whether it may get tort remedy are made.The illegal construction is denied by China's current legislative value judgment as the subject matter of property.However,in the author's mind the illegal construction in the same time should be considered social wealth.It isn't wise to adopt the policy of universal application at traditional public law's angle.It should be regulated by improving relevant civil legislation which can produce the best possible results. This paper,besides the beginning and conclusion,is divided into five parts.The first part primarily defines the illegal construction.Because the illegal construction isn't a stringent legal word,its definition in scholarship and practice group is still ambiguous and confusing.The author has made a conclusion from general recognition to scholarship recognition and in the end defined illegal construction.Moreover,the author has classified and compared the illegal construction from several dimensions in order to have deeper recognition to illegal constructions.The second part mainly explains the causation and the present regulation situation about the illegal construction.On discussing the causation of illegal constructions,the author has analyzed significantly from the angles of field investigation and positive analysis which includes social reason,economic reason,systematic reason and legal reason,etc.Next,it compares and analyses the attitudes of law and practice to the illegal construction in views of administration and civility.All in all,the cognizance and conduction to the illegal construction are mainly judged by administrative law,and the civil law which can explicitly regulates illegal constructions is extremely in need.In practice once the civil dispute in relevant to illegal constructions happens,the judge mostly treat the construction as inherent illegality and it will be either unaccepted or denied as subject matter of civil law.The third part discusses the author's consideration about the civil regulation system to illegal constructions.About the problem of whether the real right can be set up based on the illegal construct,theoretically there are several opinions:"no ownership without register", "movable estate ownership","possession real estate ownership".The author thinks that all the points above haven't expressed completely the illegal construction's civil law attributes. The illegal construction can contain complete real right.In order to prove this point the author has demonstrated it from three angles,firstly through researching on the categories of objects we can see that the illegal construction are neither non-existent nor unable to deal.Although it has "inherent illegality" its nature should be distinguished from the illegal objects as drugs and obscene things.The next,from the point of view of the separation of public law and private law,the author considers in one sense even the public law can deny the ability that the objects can contain real right in private law area,this kind of ability isn't boundless,the restriction of public law must be legal primarily,that means the contents,procedure and effect of the restriction to ownership must based on the statute.Secondly it must be reasonable.That refers to the restriction to ownership must confer to a common person's common sense and both the contents and procedure of the restriction must be appropriate.Moreover,the restriction extent to ownership by public law needs to maintain appropriate proportion with the purpose of the public law regulation.However on cognizing the civil law status of illegal constructions,it is very disproportionate to cognize they are all invalid by adopting the way of universal application.Third,the author has reflected the article9 and article30 in Real Right Law.Although it seems we can conclude from the logic of Real Right Law:"the illegal construction cannot require ownership through factual action",the author believes the problem that all the illegal construction cannot get ownership can be resolved by "legal" literal interpretation.In the end,the author has creatively proposed that the cognize to illegal construction's validity should follow the conclusion of "dualism analysis".All the constructions what have serious violated the aim of administration and gravely jeopardize the public interests can be cognized as not-allowed objects and shall be ordered to stop operation and compulsory dismantle and be fined in public law.In private law,it will not be the subjects matter of real right and the ownership of constructor will be denied as well as it will not be circulated.For the construction which disobey the administrative purpose but doesn't make serious consequence such as the construction which violate the procedure should be granted validity in civil law and allow it to be used and circulated in civil area.In the fourth part the author tries to establish illegal constructions' protection system on the basis of admitting the illegal construction can require ownership.It mainly discusses the illegal constructions protection in business and lease area and proposes the tentative suggestion of register the illegal construction.To the problem of conducting infringement remedy,we can not only adopt the ownership protect system,but also use the possession protect system to treat the illegal construction fairly and reasonably.
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