| With the speeding up of urbanization in our country, the number of house demolition disputes, which many of them caused by commercial demolition, has increased and been attracted attention of the whole society. In the year of 2011, "State-owned Land on the Housing Levy and Compensation Ordinance" was formally promulgated and implemented, mean while the former "Urban Housing Demolition Management Regulations", which had been leading last for ten years of urban housing demolition in our country, had been declared abolished. But "State-owned Land on the Housing Levy and Compensation Ordinance" has made clear its scope of application is based on "public interest" need for building a compensate activity, ruled out the demolition and relocation of commercial law applies. Though "State-owned Land on the Housing Levy and Compensation Ordinance" helps end the confusion regardless of the situation between the commercial demolition of urban buildings and public demolition, how to get the commercial demolition reasonable norms is still a question when the compensation ordinance excludes enables the commercial demolition. Because there is not a specifically legislation for commercial demolition yet, commercial demolition under the banner of "public interest" occurs from time to time, which is seriously violation of the legitimate rights and interests of relocated people.Housing demolition plays an important role in the cities’development, but the compensation disputes due to the demolition are becoming more and more intense along with the speeding up of the urbanization, which is worth our reflection. Houses are the base of people’s living, to damage personal housing ownership is the most serious damage to personal property. I compared the legal system of compensation for commercial demolition in China with foreign countries and in some areas’when I was querying existing laws of the demolition, I obtained some worthy of learning and reference stuff. For example, the public demolition and commercial demolition are strictly divided in some foreign countries’legislation, respect for and protect the relocated people’s property rights, and so on, are worth learning and reference. Commercial demolition compensation is essentially a kind of civil contract, to protect the rights of the demolition should be the priority of the priorities. But because of the reason of the information asymmetry and the status of wealth gap leads to the unequal status between those people demolitions and relocation. Therefore, a special law according to the commercial city housing demolition compensation must be make, to make a strict distinction between public demolition and commercial demolition, to exclusion of illegal intervention of public power for commercial demolition, to protect the legitimate rights.In order to improve the commercial city housing demolition compensation, I will take the civil law perspective to study the commercial demolition, mainly use the method of comparative analysis, empirical research method. At the first of the paper will discuss the basic theory of commercial city houses demolition compensation, them, is the empirical research to our country’s cities commercial housing demolition legislation and practice statue quo, and then make a comparative analysis of the commercial demolition compensation with foreign countries and Hong Kong and Taiwan, finally put forward a sound of China’s commercial city housing demolition compensation proposal. I hope this study on commercial urban housing demolition compensation can help to improve China’s commercial demolition practice.This paper is divided into three parts:introduction, body and conclusion. The body part is divided into four chapters.Chapter one is the basic theory of the commercial city house demolition compensation overview. At first I talk about the concept of urban commercial housing demolition and urban commercial demolition compensation, and analysis the two demolitions, the commercial demolition and the public demolition. The second is to elaborate the legal nature of the commercial urban housing demolition compensation, to point out that the commercial urban housing demolition is a kind of civil action. At last I will summarize the characteristics of the commercial urban housing demolition compensation.Chapter two is to analyze the current statute of China’s commercial urban housing demolition compensation. In this chapter I will described the legislative status of China’s commercial urban housing demolition compensation, including "the Constitution", "the General principles of Civil Law", "the Property Law" and "the Contract Law", some demolition compensation part are list, and analyze the existing problems among the demolition market.In chapter three I will use the comparative study method to expound the commercial demolition compensation systems of two representative legal countries, including the Anglo American law system of USA and Continental Legal System of Germany and Japan. Then, I will introduce the demolition compensation law system where the legal system more improved and perfect, Hong Kong and the Taiwan area. And then compare the same and different points in the commercial compensation provisions of these countries. Finally obtains the beneficial enlightenment to our country.Based on the previous three chapters, chapter four will put forward some personal proposals for perfecting the legal system of compensation for commercial demolition of our country, according to the advanced rules in the existing law "the State-owned Land on the Housing Levy and Compensation Ordinance" and the domestic and foreign related commercial demolition behaviors, in order to help the implementation of commercial demolition in urban construction. Recommendations include four aspects, first, put forward hope to formulated specifically for commercial compensation as soon as possible the commercial urban housing demolition and compensation ordinance, followed by a clear business units and the boundaries of public demolition, again is appropriate to expand commercial demolition compensation scope, the last is to perfect our country commercial urban housing demolition compensation relief way. |
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