Discussion On Legal Issues About Illegal Constructions

Illegal constructions have existed for a long time in our history. Even though both the national and the local governments have done a lot of work for its management, but the illegal construction is demolished here and built there. Constant arising of illegal constructions has become a major chronic disease for the urban development. And in recent years, in the field of administrative field, violent clashes between the officer and the resident and blooding events which were caused by compulsory demolition happened frequently. This is largely due to the imperfect law system and the brutal enforcement of law by the government officers. The situation need be changed. Meanwhile, in the field of private law, there are more and more civil disputes raised by the rent or transfer of the illegal construction. However, among the laws and regulations related to illegal constructions, most are made to manage them from the aspect of administration management, and in the aspect of civil law, the illegal constructions can not enjoy any rights and the law does not make any protection. But the fact which we should not ignore is that the illegal construction is made from a lot of manpower, material and other social resources. Before being demolished, the illegal construction plays an important role in the economic life of the builder. Therefore, it should be protected by the private law.In summary, there are a lot of legal issues about illegal construction to be studied both in the field of public law and in the field of private law. And this article will cover the both. Specifically, in the field of private law, the builder of the illegal construction should be granted with the ownership of real estate; while in the field of public law, the existing system should be improved. And besides the introduction and the concluding section, this article is divided into three parts.The first chapter introduces the definition of illegal construction. Although it is widely used, the concept and criteria of illegal construction has never been clearly defined in any law of our country. In this article, the author mainly introduces the concept and the constitutive requirements of illegal construction. Beginning with the difference between the illegal construction and unlicensed construction, the author make a definition from a broad sense. As to the constitutive requirements, the author advocates the "four elements" saying.The second chapter deals with the private rights of illegal constructions. There for five opinions for the issue, i.e. doctrine of no privates, ownership of construction materials, doctrine of state of possession, right of possession and ownership of real estate. The author is in favor of the last and gives four reasons for that.The third chapter analyzes the governing issue of illegal construction from the aspect of public law. And it is subdivided into three sections. The first section describes the status of legislation and introduces the five measures against illegal constructions by our law. The second one focuses on the process of compulsory demolition, including the subject who will carry out the demolition, the procedure, the scale and the timing. Section Ⅲ is based on the analysis of the first two sections, and through the comparison of foreign countries, the author brings up three advices for the management of illegal construction. First, integrate the administrative authorities and establish a joint coordination mechanism. Second, change the brutal way of enforcement, and provide humane assistance to the builder who has financial problems. For the last, establish a public platform for people to report the building of illegal construction, as well as for consultations.