| Academic research on the problem of house demolition has been a long time, according to the "housing units" as found on the CNKI literature database retrieval of topic keywords, literature can be traced back to1959, and in1990there are scholars on this issue done according to law of academic research. More than5000references from retrieved can be seen, the length of time span, subjects are without a doubt, however fair, no matter from the perspective of related research, content, or methods are unitary and conservative, more in-depth analysis of problem, but the problem solving approaches lack maneuverability. I think there are two reasons for this phenomenon:one is in the domestic public ownership as the mainstay of the context of the housing demolition this problem itself lacks the system design reference, the mature foreign theories are usually constructed on the foundation of capitalist private ownership, it The climate does not suit one. apply mechanically, and the localization process both in theory and in practice there are obvious technical barriers, so the past research or confined to the individual law patchy and lack of innovation, or more dependent on foreign analysis path for similar problems and lack of understanding of the domestic situation; two is the scholars, in the analysis of the problems on the over reliance on the existing academic resources and less creative insight, perspective is still not cling to their subject position and method, for consolidating and compete for a study of academic status and resources may be meaningful, but for the demolition of housing related social problems will inevitably fall into dilemma, only have a superficial knowledge of. It is out of the above reasons, the author think it is necessary to make a new attempt and exploration in housing units on the issue, and the research object in the demolition compensation and resettlement agreement, it is because the research on public welfare development on the one hand, housing demolition of the academic resources focus in the study, from the perspective of an extension and expansion or harvest; housing units on the other hand itself rich connotation, discusses the comprehensive and systematic solution is by no means a person or a subject to be able to do it, I can only in my research direction has more advantage and interest in contract law a try, for discussion and criticism.In this paper, by-qualitative analysis and classification of house demolition and resettlement agreement as a start, focusing on clarifying the debate about protocol attribute theory, analyses the causes of the controversy, the necessity of protocol classification, discuss the problem of public interest with the controversy for a long time and then pointed out the important value of house demolition compensation and resettlement agreement and conflict and the potential dislocation between the lack of relevant legislation contradiction exists and in practicesIn the first chapter discusses the basic problems of the argument, the second chapter focuses on the analysis of house demolition resettlement agreement itself. Traditional research on this part abandoned academia used on the scope of compensation and compensation standard contract provisions of the detailed, try dynamic process from contract negotiation, contract, contract to contract relief were analyzed, the overall is still in the contract law as the research direction, but the research methods on the bold use of economics bargaining costs, the endowment effect and incomplete competition and other related content, according to the problems of different contract process was divided into three stages, discusses from the contract to the relief of various subjects in the process of positioning.If the second chapter is the analysis of the system of the contract process, the third chapter tries to probe into the value conflict embodied in the contract process and trade-offs from highly deep legal theory. On the autonomy of the respect to the exclusion of the force to achieve the contract fulfilling manner, how the conflict between fair and efficiency to make a choice? Contract freedom and social obligation? For the minority groups such as the "nail households" and so on, its benefit demand is for legitimate rights or abuse of right? Personalized needs to ignore minority to majority agree on? The author of these issues put forward some ideas and views in the third chapter of this paper, in order to find the deep reason of housing demolition agreement dilemma in theory.Through the concrete analysis of the previous three chapters, chapter fourth focuses on the standard problem of house demolition compensation and resettlement agreement. According to the previous chapter made analysis and problem, this paper will once again:first, the contract itself, in terms of more and more complex to solve bloated draft will not contribute to the problem of housing demolition and relocation, the contract rights core obligation allocation should focus on the will and good public information and communication on the format of the contract, there is to the contract economy and efficiency, however, some scholars put forward the conception of collective signed a unified compensation standard contract will greatly kill each individual needs of street, which weakened the enthusiasm of contracting, but cannot realize the format contract function. Second, on the protection of vulnerable group not rashly that residents in this game is certainly strong, demolition is of course vulnerable, in fact from the above analysis we can see, in different stages of conclusion of the contract, both parties to the agreement’s position is not fixed, the applicable law rules of contract relationship change should have a flexibility, according to different stages of problems should make effective response. Third, on the interests of trade-offs, conflict of interest reflects this kind of contract may not only exists between was taken with the removal of people, in the street was still exist within the moral dilemmas is the interest of the majority can override the minority people, how to solve this kind of problem? Fourth, on the way of right relief, actively involved in whether to need the government? Intervention in when needed? Whether you need to emphasize the judicial finality in resolving contract disputes? On the human rights and judicial organs, and how to absorb the higher judicial costs resulting from?... |
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