Study On Public Interest Of Real Estate Appropriation In Property Law

The Constitution and property law of China expressly provide: the land and other real estate shall be levied "for the public interest needs." Therefore, the legitimate expropriation shall be for the purposes of public interest. The initial and essential issue of the real estate appropriation is how to define "public interest", since only when the fundamental issue"is realized and the consensus of parties in society is recognized, the judgment pursuant to the basic value of law can be achieved and the expropriation becomes legitimate and reasonable. But unfortunately, there are fierce debates between the academia and the practical circle which hardly leads to an agreement. What's worse, the issue is absurdly entitled"Roscommon"and the likes, for it is impossible to solve. But if it is real, the instruction of the study by the academia on this issue to the practical circle will make no sense, for there is no specific criterion for implementation and operation. This paper attempts to use the method of comparative study as the starting point, to give a historical study and systematical analysis on the real estate expropriation in the two main legal systems. Through the analysis and comparison, it selects the refined and discards the crude to achieve the effect of"Stones from other hills may serve to polish jade ".This paper is written in five sections that contains 30,000 words in all.The introduction describes the reasons for writing the article, the theoretical and practical significance, as well as the current situation study on the subject at home and aboard. Through the collation and classification of existing materials, it extracts the basic context of this article for a good narration of the following content.The first part of this article is about fundamental theoretical issue of the real estate appropriation system. Mainly it includes the philosophical dimensions of public interest, the essence and characteristics of interest category, as well as its definition. In philosophy, the public interest is gradually maturated systematically and theoretically out of the conflicts among liberalism, utilitarianism, individualism and communitariannism. In academia, the theories about interests are numerous, of which the essence is quite the same, that is, contradiction, conflict, and coordination. As the category of the interests itself has a nature of broadness and subjectivity, so it may be hard to define.The second part of the paper mainly refers to the study and analysis on theories of the two legal systems about the real estate appropriation system. It starts with the origin of real estate expropriation system for public interest, illuminates the system in the views of Roman law and Natural law respectively, and thereby demonstrates original value and theoretical foundation of the system of real estate expropriation. This paper argues that to study the value of the system with sense, it must be placed in a specific historical and cultural environment. Therefore, the article deeply analyzes and compares the real estate expropriation systems in representative countries in the two major legal systems. Such as Germany and Japan in civil law system with studying on the cultural foundation and historical factor; America in common law system with analyzing on the related cases that are significant in the development of real estate expropriation. Finally, the paper gives a graphic analysis on the principle of compensation, the public interest, as well as the content of compensation about the system.The third part of the paper refers to the basic evaluation on the system of real estate expropriation for public interest, and supplies related measures for settling the relevant problems. According to the current legislation in China, since there is no clarified definition of the public interest and whether public interest is contained is normally confirmed by the administrative organs which may be hard to be impartial, numerous expropriation may not comply with the demand of"for the purpose of public interest". For this, this section comes up with a profound analysis and related measures.The last part of this paper is the systematical summary and conclusion of the full text, on the base of which it provides the suggestions on how to build real estate expropriation system in China. In conclusion, any study needs to rely on the outcome of the predecessors', and integrate the existing materials. This article is no exception either, after the study on the real estate expropriation, it reveals the shortcomes and advantages of the system. To systemize and legalize the system in China, the advantages shall be selected, so as to compound them with the reasonable parts in China legislation, and improve the current system.