Urban Housing Demolition Of Legal Thinking

In near modern age, the urban resettlement is a common problem which all the countries in the world meet in the course of urbanization and the industrialization. In the resent years, with the rapid development of economy and the great improvement of the urbanization, the urban houses have been broken and removed broadly. The so-called broad projects of urban resettlement are very important to realization of the urban planning. They also relate a complicated connection of many-sided benefit, which relates local government, the persons whose house is relocated and he real estate developer. The government's power must be neutralization based on recognizing his function, to exploit self-governed and free room that the government can't interfere for the individual and the society. It limits the power of government fundamentally to provide the foundation of existence and realization safeguard of individual right.This paper is divided into three main parts. In the first part of this paper, the author analyses the position of the government's function in the course of the urban resettlement, based on the theory of constitutionlism. The essential meaning of constitutionalism is to standardize the power of the government by the constitution and the form of nomocracy, based on the recognition of the sovereignty of the people and the fundamental human rights. The main target, which the constitutionalism restrains, is not the normal persons, is the authority organization such as the country, the government. In modern time, in all the civilized countries, the right of property is basic right stipulated by the constitution and law. The right of property is the core and the foundation of human rights, which also is the essential problem of the constitutionalism. Based on the theory of constitutionalism, the government in the course of the urban resettlement should complete the following work: protecting the human rights and property right, constituting public policies, regulating relations among various interests, and creating fair market competition environment.In the second part of this paper, from the reality of urban resettlement, the author pointe out the misconduct of the government in the course of urban resettlement, and analyse the reason of it. As the legitimate representative of the public interest, the government should be a limited and effective government, which keeps to the constitutionalism, persists public position, and it is responsible for the people. But currently, in the work of urban settlement, the government has some misconduct: divides the project of the public welfare and the project of the in-public welfare willfully, decides the expiation of the urban resettlement, the government involves the commercial resettlement, the failure of administrative relief to the relocated. There are some main reasons as follows: Firstly, the existing urban housing demolition legal system is not perfect, the law is low-level legal effect, only administrative regulations and local rules and regulations, the content also has the deficiency; Secondly, awareness of the government's own public role is fuzzy as a result of unsound legal system; The third reason is the impacts of the planned economy's form and traditional political culture.In the third part of this paper, the author put forward the suggestion of restricting the behavior of the government, based on analyzing the reasons above. "Constitutionlism" is the "the constitutional government", which means the power of the government is limited strictly. Constitution and the law must delimit the explicit boundary of the action of the government. To restrict the behavior of the government, we should make up the lacuna of legislation in the urban resettlement, and improve the content of the law: establish the hearing system, improve the compensation system, establish the minimum security line, and deal the disputes fairly. Secondly, if the government wants to recognize his position, he will persist in the principle of people-centered and the inviolability of private property rights. Thirdly, we should define functions of the government. The definitude of the government means the definitude of the scope and the content of the power of the government. The government must do what he should do. The control and the freedom is the use of the government's power. The government's activities should be primarily limited to the field of public affairs, but the government can not completely withdraw from the commercial demolition. Presently, despite the current excessive government intervention in the urban housing demolition, leads to lack of effective protection of civil rights, but the government should not be cancelled on urban housing demolition control. Government should make comprehensive use of the regulatory and administrative guidance to a benign means of the government. Fourthly, strengthen judicial supervision to government's acts.