| Closely related to people's benefits, housing demolition has become a hot topic and caused general concern. Compensation for demolition is the focus of the discussions and there are mainly two viewpoints on it: 1) some people believe that citizens' legal property rights are not protected if the compensation is low; 2) others argue that high compensation will increase the demolition cost and impede cities' development. It is necessary for us to consider the following issues: the scope of losses to be compensated, the causes for compensation, and the standards for compensation. Especially, what standards are most helpful to current China? This article discusses these issues as follows.With the development of economy, industry and civilization, people's legal private properties are strictly protected by law. However, the effort to make more comfortable and convenient life drives people to consider issues like how to use land rationally, how to scientifically zoning the cities. As a result, urban housing demolition is inevitable. Literally, housing demolition is a method for government to exert its public right. The sole prerequisite for the exertion is the purpose of social public benefit. Consequently, urban housing demolition should be solely based on purposes of social public benefit, excluding purely commercial ones. It is unnecessary to distinguish commercial demolition and for social public benefitIn the first section, this article analyses rationale of housing demolition law by studying the background of demolition. As other law systems, housing demolition law is based on objective base demanded by social economy. The development of house demolition law is the result of comprehensive factors such as the demand of industry and urbanization, the reconsideration of cities' zoning, the relation between land use and man's development, general attention on people's individual rights, restrict legal protection on private properties, and pursuit for good residence and environment. Therefore, housing demolition is inevitable. And the inevitability conflicts with the protection on the right owners of houses. Housing demolition law evolves to solve the conflict. In this section, the author also analyses China's housing demolition law. China's housing demolition law emerges in the large-scale urbanization in 1990s. While we cherish the great changes of cities, wehave witnessed that, because of demolition, some people bum themselves to death due to demolition, some go to court, others appeal to higher authorities.. .To solve these issues, the author analyses the nature of demolition. The author holds that demolition should not be simply classified as civil act or administrative act It should be treated as a complicated social activity involving multi-benefits and all factors should be taken into accountIn the second section, this article discusses the substantive and procedural elements of housing demolition. As we all know, the sole substantive element of housing demolition is the purpose of social public benefit Countries and regions have varied interpretations on social public benefit Unfortunately, it has not been specific? ]Iy defined in china. This is an important reason for abuses of "social public benefit" in China's demolition process. By consulting other countries' definitions on the term, the author defines the intension and extension of public benefit in China. That is, relevant laws in China should define "social public benefit" in two aspects: l)the nature of public use; 2)the use of public benefit Furthenaore, it should be stipulated that demolition shall not be done in absence of social puolic benefit reasons. Next, the author levels social public benefit by level of validity. Effects on housing demolition by public benefit of each level are also discussed. The author stresses some controversial issues in practice. Take old city reform for example. Usually, it is run by government and developed by developers. The author explores on how to classify this kind of demolition, whether it has the purpose of social public benefit Procedural elements are many in the field of housing demolition, for instance, application of demolition license, contract on demolition compensation and settlement Among them, the author focus attention on two points: l)hearing procedure; 2)the procedure of demolition license application - the conclusion of the contract on demolition compensation and settlement between the demolisher and the demolished.The third section focuses on the compensation for demolition. The author studies the compensation bases for housing, land use and settlement compensation right, defines the legal standards for housing demolition compensation, and attaches special attention on the protection on the disadvantageous in housing demolition compensation. The author consults the theory of economic subjects'social liability and brings forth the concept of preferential right Modem theories hold that in addition to maximizing profit, economic subjects is responsible to those who are benefit-related. Since the economic subject takes advantage of the society's comprehensive conditions, it shall undertake reasonable responsibilities and liabilities for the society. As demolition is concerned, since the demolisher benefits from demolition, they should take certain responsibilities and liabilities for poor households in demolition. The responsibilities or liabilities are not performed in accordance of basic principles in civil law such as equality and mutual benefit, making compensation for equal value. They result from protection on poor households' right to survival. Finally, the author discusses the allocation of responsibilities for compensation.The last section points out some issues for notice, namely, the realization of the right to demolition compensation, the interpretation and application of "concentration on person" in demolition, duties and effects of media on demolition, housing demolition system with Chinese characteristics. |
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