Research On Inverse Condemnation System

Stable property relations is one of the basic premise of stable social relationships, and as an important personal rights, property rights has always been protection of modern states. Constitution promulgated by the takings clause to protect private property rights from infringement by public power. Due process and fair compensation required as a prerequisite when the government makes the expropriation for the public interest. With the strengthening of the government’s social management functions, when government put restrictions on property rights in order to improve the public welfare, sometimes it beyond the social obligation of property right and give excessive constrains, which constitutes inverse condemnation. The inverse condemnation refers to these limits which are not conductive to the protection of property rights and a stable society. The abroad have a comparatively complete inverse condemnation system, which can protect the interests of the oblige when property rights are restricted. There are also circumstances unduly restricted in China, however, there are not any provisions of relevant theories and laws for the people. Through the study of inverse condemnation in theory and practice, this paper puts forward the corresponding suggestions on how to establish the inverse condemnation system in our country.This paper is divided into five parts, the main contents are as follows:The first part studies the basic contents of inverse condemnation. This section mainly discussed the development of eminent domain and the emergence of inverse condemnation, while the inverse condemnation, the police power and other related concepts are compared.The second part studies the theoretical foundation of inverse condemnation. This section discussed the theoretical foundation from the property rights in constitution restriction and guarantee theory, the theory of defensive claims in rem and the theory of power restriction.The third part studies the inverse condemnation legal systems of other countries and regions. Because of the inverse condemnation system mainly developed in the United States and other countries, so first this paper studied the physical takings and regulatory takings in US. As the German concept appeared in its collection development process " Der enteignungsgleiche Eingriff" and "enteignender Eingriff," and in the "Building Code" in the property were given by the relevant provisions of the reverse charge claims described. And Taiwan’s relevant provisions also been introduced. By combing and analysis of these countries and regions about inverse condemnation and similar systems, summarizes the cognizance standard and the request power in inverse condemnation.The fourth part analyzes the real basis of the introduction of the inverse condemnation system in China. In China, there is no design of the system of inverse condemnation, but in practice there are property rights subjected to excessive constrains, such as "national main functional area planning" in the restricted zone and other situations. Although these circumstances property value has been greatly diluted, objectively produced an effect similar to takings, but people can not start the expropriation procedure to realize the value of the property right. So it is very necessary to put the inverse condemnation into law.The fifth part give some advice on the construction of the reverse charge system proposed. For how to build a reverse charge system in China, the paper from the viewpoint of the majority of scholars agree that the general to the specific legislative approach, that is, first in the Constitution of the original scope of the takings will be expanded, while in the all other laws and regulations specified in the standard of inverse condemnation, the compensation range, remedies and other issues, in order to form a complete reverse charge system.