Illegal Buildings Negation And Affirmation

Since reform and opening up, China has made great achievements in economic and social development, and the construction level in urban and rural areas has been improved substantially. However, there appear an increasing number of illegal constructions in the process of development. The ownership and utilization of illegal constructions and how to deal with them are becoming one of the hot topics in the process of urban and rural construction.Illegal construction is the selection of its inevitability and in the future for a long period of time will exist in large quantities. In theory and in practice there are a lot of problems on how to look at illegal construction. The causes of such problems lie in the dual attributes of illegal construction: in public law, the illegal construction has "inherent illegality" because of its violation of a series of public laws such as the "Land Management Law" and the "Town and Country Planning Law", so it can only get negative evaluation of public laws, can not be allowed to real estate ownership registration, facing punishments such as stop building or using, and a deadline for correction, fines, demolition, etc. But in private law, the rights and obligations relationship concerning illegal construction should be able to receive the affirmative evaluation before it is demolished by the relevant departments, and the effective use of illegal buildings should also be protected by private law. This paper would mainly study on the private rights of illegal construction, clarify the ownership of illegal construction, and put forward suggestions to the regulation of illegal construction. The nuclear purpose of clarifying the private rights for illegal construction owned by its builder is to establish a correct concept of private right, to make the relevant people protected by private law, and then to be conducive to the reasonable use of the illegal construction by people, which make it more helpful to the economic and social development of our country.This paper, besides the beginning and conclusion, is divided into five parts.Part I , the meaning of illegal construction, and its types and causes. Generally considered, illegal construction is the building built in the urban and rural planning areas, which should be ratified by the land management or planning department before construction but actually not, or built not in accordance with the content of ratification. There are different classifications of illegal construction types under different standards. The most important classification of illegal buildings is to divide into "procedural illegal construction" and "substantive illegal construction" at research on illegal construction's ownership and utilization. Because after imposing fines and completing the rectification, procedural illegal construction can be handled in accordance with legal construction and this paper mainly study the ownership and utilization of substantive illegal construction. On the surface, illegal construction appears due to the pursuit of personal interest, negligence of the law and ineffective management and lax enforcement of law of the relevant departments; in essence, the illegal construction is the result of the confliction between Chinese building management system and people's needs on the building. We can analyze the deep-seated reasons from the social, legal, and economic aspects.Part II, the realistic condition of illegal construction in our country. China's law on the illegal construction has taken firmly against attitude towards the illegal construction and does not acknowledge the illegal construction ownership, refusing illegal construction to register. The sales, leasing, mortgages, donation and inheritance of illegal construction are invalid. In China's judicial practice on illegal construction, there are several opinions: "movable estate ownership", "real estate ownership ", "possession". The research on illegal construction ownership is not much. The main points include "no ownership without register, " "incomplete real rights, " "possession" and "real estate ownership". Here I believe that the "real estate ownership" would be more reasonable.Part III, analysis on the illegal construction ownership. Illegal construction is real estate, real estate register has an important theoretical and practical significance and played an important role in transfer of real rights. According to Chinese law, transfer of real rights need to be registered, non-registered, non-effective. However, the rule is only used when the transfer of real rights by legal action. The fact action leading to transfer of real rights is not necessarily registered. The builder obtains the real estate ownership immediately as the construction is completed automatically. Without registration, the ownership he gained is not affected. Can not register does not affect the illegal construction ownership. Illegal building act would get a negative assessment, including in public law and in private law, but these negative assessment does not deprive or restrict of the ownership of the builder. So as long as illegal construction is not demolished, its "inherent illegality" will not affect the illegal construction ownership. At the same time, China's laws do not acknowledge the illegal construction ownership, and refuse to the illegal construction register. This is because on the objective illegal construction seriously damage our society. The appearance of illegal construction in great deal disturbs the normal social order and does damages to public interest. The purpose of not admitting the illegal construction ownership is to make the builders clear that they can get nothing from the building illegal construction and they should give up the effort to build automatically. However, the reality of the situation is that such a requirement is simply the wishful thinking of the administrator. In the real life, illegal construction is built more and more. This reality indicates the actions taken by the administration are inefficient but only bring about negative effects.Part IV, thinking on the register of illegal construction.in accordance with the above, I believe that we must correct understanding of the status of illegal construction; the law should acknowledge the illegal construction ownership of its builder, allowing illegal construction to real estate register. By doing so, in law science it is helpful to restore the true colors of real estate registration, and the comprehensive publication of the real rights. Meanwhile, it can effectively protect private rights, and enhance the awareness of civil rights .From the economic terms, it is conducive to the maximization of property utility and fully improves the efficiency of the property to increase social wealth. In the social aspect, it is helpful to country's regulation and supervision to the real estate market, increasing state revenues, maintaining social stability, and promoting the harmonious development of society.Part V, some viewpoints on regulation system to illegal construction. To acknowledge the illegal construction ownership and allow it to register, we need some corresponding norms. The following points require special attention: it should be clear that illegal construction cannot resist the negative assessment from imposed by law from beginning to end, that is, the builder should not confront the relevant government department when it deal with the illegal construction problem according to the law and by legal procedure; the relevant departments should improve the planning, approval, construction, and other housing building system, formulate detailed plans for publicity to the people, improve the building vetting procedures, and reduce the cost of approving, as well as strengthen the legal propaganda; some special illegal construction should be dealt by special treatment, such as the top of the roof, awning, change for the indoor structure and tearing down walls or the construction of garret, etc, they should not be carried out as illegal construction provided that they do not affect public safety; improving the register system for illegal construction. Builders get the ownership when the building is completed, and this real rights does not have to register. But when the builder wants to transfer the real rights of the illegal construction, it should be register, or it is invalid; improving the utilization system of illegal construction. In the civil law area illegal construction should be fully protected by private law, and this protection should not be treated differently compared with the legal construction. Allowing people to make use of the illegal construction with a wide range, including personal use, lease, sale, mortgage, donation, and inheritance, etc.