Study Of Private Law Issues Of Illegal Buildings

At present, illegal construction has become one of the hot pots wherever in Chinese cities or its countryside. The reason maybe lies in the fact of Chinese great population or the inappropriate administration. Such illegal constructions can lead to not only the administrative punishments, such as "variation by the prescribed time", "fining" and "dismantling", but also conflicts between different private interests which are brought out directly by the transference of illegal constructions and relative torts. Those two aspects seem to be inseparable, but in the nature, they are discriminated, for one belongs to the field of public law, but the other, the field of private law. The way dividing the laws into public law and private law has been prevailing in the civil law system since the lawyers in the ancient roman have developed it The administrative punishments for illegal construction relates to the public law, however, the relations between different private interests brought out by illegal construction are regulated by the private law. The latter is the topic of this thesis.I BeginningThe problems resulted in by illegal constructions are increasing. The key point to resolve such issues is to correctly recognize the private nature of illegal constructions, the study of which is just budding. I contend that it's of great necessity to go fatherly and ail-roundly in this study.The basic feature of illegal construction is "the illegality in nature". According to the contents and proceeding, it can be divided into "illegal construction in proceeding" and "illegal construction in instinct". As for the former, the illegal constructions can become legal by going through the formalities afterwards; as for the latter, the situation is not the same. The private problems about the former can be handled in the light of the provisions regarding the legal constructions. This thesis only deals with the private problems from the illegalconstruction in instinct.II The relation of attributionAs the laws are divided into the public laws and the private laws, illegal constructions can be divided into three sections, this is , illegal constructions which only violates the public law and which violates both public law and private law, and which only violates private law.The illegal constructions which only violate the public law merely meet the neglect evaluation in the public law other than the neglect evaluation about the ownership in the private law; therefore, the constructor can get the ownership of the illegal construction on the fact of construction.Another type can divide into two kinds as the one completely occupying other's lands and another overstepping the boundary. As for the first kind, in the country adopting the appending rule, the illegal construction should belong to the owner of the land; but in the country not adopting this rule, the illegal construction should belong to the constructor, whose property also should be limited by the right of the land's owner. As for the second kind, most countries assert the owner of the land has the duty to bear such situation.The construction which only violates private law mainly appear in the neighborly plateaus. The neighborly shall have the right to stop the infringement, eliminate the obstruction and compensate for the damages based on the violation of construction to his neighbor's right. But these can't affect the fact that the constructor owning th€ buildings.Otherwise, there're some other doctrines on this issue, which have some radical defects and are not useful here.III The relations of the use of the illegal constructions(I)As for the transaction and lease of illegal constructions, there are 3 problems: 1 ,The validity of the contracts of the transaction and lease of illegal constructions: Though the contracts have such defects as the illegality of the constructions, the inaccessibility of the registration ofthe original ownership, of the transference, of the lease, the validity of the debt should be effected thereof. Of...