The Study On Judicial Remedy Of Disputes Of Expropriation Compensation Agreement

We can not know the nature of the expropriation compensation agreement and relief way from the article twenty-fifth of state-owned land on the housing levy and Compensation Ordinance. The vague expression "may bring a lawsuit in accordance with the law" caused qualitative dispute between administrative contract and civil contract in the circles of theory and practice. The uncertain provision can easily leads to confusion when courts accept such cases and people safeguard their own rights and interests. Thus, it is veryimportmant and urgent to clear the nature of the expropriation compensation agreement and the judicial relief way.From the internal logic of expropriation compensation agreement, it is reached by the department of housing levy and by the collection of housing ownership or public houses about the specific matters on expropriation and compensation based on the public interests. Through the understanding of the basic features of the administrative contract and the recognition standard of administrative contract and civil contract, we can know that the agreement is in accordance with the internal structure of the administrative contract. From the value dimension, positioning the expropriation compensation agreement for the administrative contract can not only make itself to the rational regression, but also promote the development of administrative contract theory in the administrative activities.It is also conducive to the protection of the administrative relative person’s legitimate rights and interests.After distinguishing the logic starting point, it is the realistic foundation to examine the existing judicial remedy in legislation and practice in order to perfect the judicial relief path. Through Examination in each level of legal text, We found that the existing legislation mainly has the following defects. Firstly, the legislative language is in ambiguity. Nextly, the low order specification is against the provision in the upper law.Under the existing legislative framework, if following the administrative litigation relief way, it will encounter the embarrassment on the real operation. In one hand, the litigaition rights of the administrative subject can not be achieved. In another hand, such micro regulation in the administrative litigation as the distribution of burden proof and application of law cannot cope with the challenges of bidirectional review when judging this kind of disputes. However, it also has incompatibility if ignoring the essential attribution of administrative expropriation compensation agreement and yielding to the civil litigation relief way. In the macro aspect, the equal litigation status of both sides in civil lawsuits is not conducive to supervise the power of administrative body, and even more difficult to protect the rights and interests of the people. While in the micro level, the specific rules in civil litigation cannot review the legality of the administrative contract.From the practice perspective, this kind of cases present such characteristics as large amount of compensation, prominent contradiction between interest groups. The main reasons inducing the expropriation compensation agreement disputes are the omission of the placement objects, the housing levy department’s suspension and the heterogeneity of expropriation compensation standard and so on. In dealing with such disputes, the courts in all areas, some in the administrative litigation while more in the civil litigation.Different trial modes have otherness in the proceedings, the application of the lawand trial rules etc, which will inevitably lead to the differences in outcomes of the trial and and affect the fair justice eventually."No relief, no right". Constructing procedure and judicial review rules is the protective screen with the legal nature of the agreements as the logic starting point and with the goal of improving the current defects of judicial relief. The housing levy compensation agreement finally form the administrative law relationship. So administrative legal relationship should be applicable to administrative law and the agreement disputes should also follow the path of public remedy. With the adjustion of administrative procedural law, the administrative agreement disputes will be incorporated into the scope of accepting cases of administrative litigation and adding the new ways of judgment. Thus, the levy can file an administrative litigation when the collection department violates the contract. The housing collection depertment also has needs to ask the court to award. More importmently, nonstandard behaviours can be avoided by exercising the necessary limit of the litigation right of collection department when giving them rights. Definitely, technical changes needs to be made in the design of specific systems.Improvements include the following aspects:(1)the legislative mode. The contents needs to be presented through some form of legislation, while at present, the form of judicial interpretation is the optimal solution.(2) the specific contents of the bidirectional review structure. Proceedings can drawing on the experience of civil litigation. Detailed, the housing levy Department should have plaintiff qualification in administrative litigation. The housing levy department shall bear the burden of proof to demonstrate its jurisdiction and legitimacy of its behaviours, other contents follow the distribution of burden of proof in civil litigation.Substantive hearing contents includes:(1) application of law. The court not only need apply "the specific provisions of contract law", but also more follow the principles and rules in administrative law including the principles of fairness and justice,the legal principle of reasonableness and the principle of limited mediation.(2) the decision type. The court can choose much change decision and the fuifilling decision.On the connection of the agreement and apply to the court for compulsory execution, under the understanding that the agreement is a special means of carrying out administrative will, in addition to considering the compensation agreement is concluded in order to successfully complete collection target, thus, after conclusing the expropriation compensation agreement, if the relative does not perform the obligations without a legitimate reason and will does urgent harm to the social public interests, it is necessary to allow the housing levy department to apply to the court for compulsory execution. In concrete operation, through improving administrative procedures to regulate and control the exercising of the right——introducing summons procedures and explaining the reason program.