Font Size: a A A

The Civil Rights Of Substantive Illegal Constructions

Posted on:2016-05-09Degree:MasterType:Thesis
Country:ChinaCandidate:W ChenFull Text:PDF
GTID:2296330479988081Subject:Law
Abstract/Summary:PDF Full Text Request
Since 1980 s, problems caused by illegal construction have become increasingly prominent. "The illegal construction of state-owned enterprises in Hunan ", "the most luxurious illegal construction in Nanjing", "Humen illegal construction events", "Wuhan illegal construction events", "Guangdong illegal construction", "Nanhu illegal construction" and many other illegal constructions were disclosed by the media. The increasingly serious problem has caught the attention of academic circles of our country, and it’s becoming the hotspot of study gradually. There have been a more in-depth study of public law on prevention, punishment, expropriation, but the discussion on illegal constructions in private law areas appeared in the last ten years before it began to get more attention. Even if there have been already several academic researches and discussions on the proprietary rights of illegal construction, property registration, lease, sale, inheritance and infringement on illegal constructions, yet findings of the study are not satisfied and further researches are still needed. Meanwhile, with a high speed of the urbanization and high pressure of the residents, illegal constructions are increasing rapidly from both types and quantities. Therefore, finding a resolution to the illegal construction matters in private law is a task which brooks no delay. Although today there are a number of provisions in Chinese current public law system, yet it is still hard to find a provision in the current private law system, which makes the problem of illegal constructions even more difficult to be solved effectively. "Paying attention to public law and looking down on private law" seriously affects the value orientation of theory research and judicial practice in China, and it has become a common problem of illegal construction on private law. In this situation, the author holds that an intensive study and discussion on the private law issues of illegal construction is still needed.At first, this thesis defines definitions, types and related legal issues of illegal constructions to comprehend its basic attribute. Through researching the legislative background and process of "unauthorized construction" and "illegal construction”, the author finds that the category of the former " unauthorized construction " has already belonged to the current " illegal construction ". Before being used to construction, the building material, including physical and legal attributes, belongs to the movable property, but the two attributes bind to make the immovable property after being used to construction. The " illegal construction " is generated from the provisions of public law. Although illegal constructions involve issues of private law, they just belong to the concept of " public law ". Therefore, the " illegal construction " refers to the constructions built without permissions of the government, or the constructions used over permitted period, and there appears a consequence violating our laws, regulations and rules. In order to study illegal constructions more effectively, scholars classified the illegal constructions. But based on whether it can be corrected, the author thinks the most valuable classification is the “procedural illegal construction" and "substantive illegal construction". The "substantive illegal construction" is the main research object in this article.After carrying on the legal limits to the illegal constructions, this thesis discusses the setting of the right, the initial right acquisition and the problems of illegal constructions. And it determines the proprietary right of illegal construction on existence and the illegal construction proprietary right which can be acquired by the behavior of "building illegally". Setting the civil right of illegal construction is subject to the section 5 of "Real Right Law", thus the initial right generation and acquirement should be admitted by academic and practical circles. Even if it is not obtained the qualification of registration, the acquisition of illegal constructions proprietary right is subject to section 9 of "Real Right Law". In the section 13 of "Real Right Law", " building illegally" as a factual behavior also can make the owner get the proprietary right of illegal constructions. In the research of the "Real Right Law", it is the correct interpretation of the current law of our country that the proprietary right of illegal constructions exists.In this thesis, with section 52(4) and section 52(5) of "contract law" as the basis, the "damage of the public interests" of illegal constructions and "violation of mandatory provisions of law" of illegal constructions disposition contracts are explored. Except special ones, most of the illegal constructions disposition contracts are effective. However, it doesn’t mean that the disposition of illegal constructions is effective. It can’t change the owners of illegal constructions by selling or gifting. Although the concept of "right of disposition in fact" was created to deal with the situation, but it is so useless that most of academicians think the concept should be abandoned. After the builder becomes the owner of the illegal construction, his right of disposition is based on the usage right. He can handle it without change of proprietary right, such as leasing, borrowing etc.Since the illegal construction proprietary right exists, it deserves protection from private law. This thesis discusses the protection of illegal constructions from two aspects: "real right law" and "tort law". When the illegal construction is infringed upon, the owner can seek for the protection of the law by the claim for real confirm, the claim for return, the claim for obstruction and the claim for restitution. However, because of its "illegality", the protection is reduced or restricted. At the same time, the illegal construction also can be protected by the "tort law". Whether the property is legal or not, the court has the duty to protect it from being damaged. Protection of illegal constructions itself can’t be ignored. Although the infringement object belongs to illegal property, yet the one who infringes on it is also in fault to compensate.It is an inevitable explanation in our current law that "illegal constructions are proprietary" is not a theoretical assumption of legislative construction but an inevitable explanation to the current law. In order to better deal with illegal construction on civil rights, the legislation of our country should adopt the "package legislation" technique, delete the word "legal" in the Sentence of "legal constructions protected by law" in the current constitution, law, administrative rules and regulations, which prevents the ambiguity of the word and the misreading of the legislator of low standards. The author’s holds that the recognition of the proprietary right of illegal constructions will neither make the illegal constructions flooding up nor bring a huge hindrance to administrative management and supervision of the illegal constructions. Instead, the correct understanding and fair treatment of civil rights of illegal constructions can make the management of administrative law more effective, and it will let the government know the enforcement should be focused not only on the illegal construction itself, but also on the behavior of "building illegally".
Keywords/Search Tags:Illegal Construction, Unauthorized Construction, Proprietary Right, Right of Disposal, Remedy of Civil Law
PDF Full Text Request
Related items