Studies On The Theory Of Regulatory Taking

Regulatory taking is a proper noun in American property law. It means that the governments neither take actual possession of the private property, nor cause physical damages to the private property, but as a result of legislation or specific administrative act, the governments impose excessive limitations on the private property right, which infringe upon the rights of the private as well as the value of the property. If the excessive limitations the governments imposed transcend the Constitution and the law, the governments'act will be considered as a kind of expropriation, which must give fair compensation to the private according to the Fifth Amendment to the United States Constitution. Imposing excessive limitations actually eliminate or impair the private property, so the essence of regulatory taking lies in balancing government power and private right, and there are no good to inhibit excessively any power or right.In combination with coal industry reform in Shanxi Province, the paper first listed some problems in the regulatory taking of China and the necessity to establish relevant regulation. Then the author reviews relative references home and abroad about expropriation, and do research on the theory of regulatory taking, analyzing its legal practice, definition and constitutive requirements. With adoption of comparative method, historical method and institutional analysis method, the author puts forward some advice on public interest, fair compensation, due process in China referring to the foreign advanced experiences. The conclusion part summarized that regulatory taking, to some extent, could balance government power and private property right, so as to prevent the private property rights from being infringed by abused government power.