Administrative Law’s Protection Of Constitutional Private Property Rights

Private property rights experienced a complicated and changeable course in our country, its fate is changeable and not fare well. The concept of property rights is more of the result of legal transplant. In the long-Slavery Society, there is no general sense of personal private property which only belong to slave owners. In feudal society, as an old saying goes: "King has long arms", that is all property are owned by the king. In the early founding of the People’s Republic of China, although there are provisions about private property rights, the concept of private property rights is avoided. During the “Great Leap Forward ”and“ the Cultural Revolution”, even the basic means of subsistence and production are owned by the nation and collective, there was no private property and the study of private property is listed as restricted. Before the reform and opening up, people have not been able to distinguish the relationship between ownership and ownership in theory scientifically, there has been discrimination against private property in practice. Most people believe that production are belong to the nation and only allowing individuals to have some means of subsistence, which was regarded as the difference between capitalism and socialism. Private property protection system is very weak. The concept of private property and protection of rights slowly emerged after the reform and opening up. It was not until The 2004 Constitution Amendment did he protection of private property first appear in constitution, but still far from the western property rights security level, and the continuous limits.The shortage of the protection of private property has always been our weakness.The meaning and the emphasis of private property rights from the perspective of different department law are different. First of all, in the context of the constitution, while the content of private property right mainly rely on the civil law definition, but it declare its character of right in rem in the level of the national fundamental law,meaning that it has enough rights to fight against interference and infringement among which the most important problem is the interference from public power. The mainly aim of Constitution is to limit the public power, civil law and the private rights, which is different from the private rights and the relationship between the equal subjects in civil law. Traditional property rights under the administrative law means to protect property rights from the violation of administrative power more. This protection is a specific protection from public power that administrative law carry out based on the Constitution,that is specify the system design of the relation between administrative organs and civil in Constitution. The private property rights in Civil law emphasize its pure property attribute value, in addition, the property value can be separated from the personality and identity of the holder. Private property rights have different legal attribute in administrative law and civil law. Civil law is of making equality and mutual benefits relationship between equal subjects, private property rights in civil law is more of clearly defined property rights between equal subjects and end disputes. However, private property right in administrative law have constant administrative subject and the administrative relative person, It is obligation and responsibility for administrative subject to protect private property right for free, which can’t be given up. When administrative subject can not fulfill the duty of protecting private property rights for the parties, they should assume corresponding responsibility.The 13 th article of Constitution is a system which include terms such as: the private property of citizens are inviolable clause, the restrictive clause and the the compensation terms: it replace the ownership with property rights, and declare the nature of property rights; change the listed principle of property to the principle of generalization of property rights; distinguish the concept of levy and requisition, and rule that it must base on public welfare purposes and give compensation, which implied the citizen’s right to relief. Constitution protect the private property rights by ruling basic human rights principle, principle of limited power of nation,the principle of equal protection and the principle of reasonable limit of civil rights.Administrative law’s protection of private property mainly include three aspects: the first aspect is public power of administrative can not violent private property, but provide normal and general protection. This is an obligation as negative infringement, something like protection of private property in civil law. The second aspect is for the purpose of public interests and the expansion of the private property rights, and as a result, this is easily result in abusing of power, so according to the legal situation and procedures adopt some restrictions and specifications----collection and requisition to private property rights. The third aspect is the positive protection of new rights, mainly is the welfare property. This is positive safeguard obligation. Limitation state mainly manifest as: 1.The purpose of administrative levy is for the sake of public interests, but to now there is no law to make clear boundaries to public interests in our country. 2. Collection and requisition must give some compensations, but there still exist collection and requisition do not have compensation; Though some put regulate compensation, the compensation scope is too narrow and low. 3. The regulation of our current legislation of financial and property regulations are too simple and generally, there is neither detailed procedures nor detailed standards of compensation. 4. The current tax administrative rules and regulations especially serious violation of the constitution and the tax revenue legal principle. 5. There is no progress of unified < administrative fee law>, the wide range of charging method and regulation is too cluttered.6. In the realistic society,a lot of normative documents and practices against punishment set of legal principle,performances are "The administrative punishment of restricting personal freedom only can be set by law,local rules and regulations can neither restrict it nor revoke of enterprise business license, regulations can only set warnings and a certain amount of fines,rules and normative documents do not have rights of setting administrative punishment. " 7.Compulsory administrative practice easy to infringe on their citizen’s private property rights is normative documents breaks the setting limitation of administrative compulsory measures and administrative enforcement. 8.The administrative reconsideration system in our country has obtained certain result, and the standardization construction plan have been issued, the procedure also relative specification, to some extent, there exist reconsideration system of error correction, it pays attention to mediation. The organs of all levels has accepted the case of more than 120 thousands, this solve the administrative disputes, safeguard the legitimate rights and interests of the administrative relative person to a certain extent. But with the transformation of Chinese society, the dispute among officials and people increase dramatically, contradictions and problems in the process of administrative reconsideration system is running out. 9.The compensation regulation’s scope is too narrow in our country.As the administrative procedure law’s protection to the private property rights,firstly,property rights is mainly manifested in the file link state pursuit of security of litigation: emphasis on "administrative action", expand the scope of accepting cases, standard filing procedure, supplementary examination the red files, strengthen the mediation, further defined the scope of the plaintiff; Secondly, pursuit the justice in the trial link: excluding illegal interference, clearly the head of administrative organ to appear in the court, to clear the burden of proof and the illegal violation discipline of the plaintiff’s litigation,to safeguard the actual level significance,to perfect the decision situation; Thirdly,in the implementation link to pursuit effective and practice: to strengthen the judicial punishment,to promote public trail.The problems and causes of private property rights protection from the view of administrative law,First,there are idea obstacles such as justice outweighing benefit, "Private as the source of evil",the public interest is better than the personal interests and the public sector plays a predominant role.Second,the different protection of the constitution on public property and private property, the style arrangement of private property rights in the constitution and the implementation of constitution are also not in place.Third,own problems of administrative law :1.The concept of defects :subject of administrative is confused with private property rights protection from the view of administrative law and civil law;2.The legislative defects : Confusion and inconsistency of administrative legal system:(1)The lack of corresponding laws and system,many probable clauses and opaque rules of administrative law, unsound executive incentive mechanism,the lack of new property rights safeguard,the lack of uniform provisions on welfare property etc,unclear procedure and the absence of procedure;(2)There are confusion and contradiction between the administrative normative documents,The administrative power is set unreasonable and configured improper,As the public power,administrative power is too strong and centralized than private property rights,the control of Administrative power on property rights is too strict which resulting in frequent occurrence of abuse of power and rent-seeking of power in practice,The protection of property right has many uncertain factors because of that the set of rule is opaque,not detailed and the administrative discretion is too large.So the protection disguised devaluation in fact.(3)Additionally,defects on law-enforcement such as subject of administrative disregarding procedure,violating trust protection and break the principle of administrative legitimacy and administrative rationality;(4)Compensation and recuperation have no unified regulations and the scope is too narrow,not only the regulations on administrative reconsideration are incomplete but also other relief systems.3. Law enforcement is seriously violation of the basic principles.4. Administrative remedy is not perfect.Forth,the scope of accepting cases in administrative procedure is very limited:rules and normative documents can not be in the range of incidental review,Absence of administrative public interest litigation, the serious problem of review on non-persecution executive cases, and the problem of the absence of Special Administrative Court on the private property limited protection.To persure the constitutional administrative procedure law’s protection for the private property rights,at first,seeking for the perfection of constitutional private property rights protection from the view of administrative law,the constitution must improve itself:Amend the article of the constitution for reflecting the equal protection of public property and private property;Adjust the clause structure for defining private property rights as the fundamental rights of citizens;Expand the scope of non-public owned assets;Strengthen the constitutional interpretation, define the concept of "public interests";Clean up the unconstitutional,illegal file for truly and effectively promoting the review of constitutionality.Secondly, There are two angles to improve the protection of administrative law of which specifying limits and strengthening protection:Clean up the unconstitutional or illegal administrative regulations and rules;Perfect the relevant administrative laws and regulations,define the concept of "public interests" through legislation;The administrative subject should follow the principle of limiting the rights of citizen’s private property rights;Administrative organ should obey the due process;To change the idea, and actively fulfill its act obligations,expand the scope of private property rights.Finally, it is necessary to improve the private property rights protection from the view of administrative procedure law through the procedural safeguards:To expand the range of the qualification of defendant;Abstract administrative act that suit conditions should be separately sued,that is,carry out an independent review;To determine the scope of accepting cases through generalized definite rules in order to guarantee the procedural rights; To establish public interest litigation system as soon as possible;To establish the special administrative court;To standardize the review of non-persecution executive cases and so on.