The Study On The Civil Rights Above The Illegal Construction

It has a long time that illegal constructions seem to be one of the key reasons of dirty and disorder of the city. What is more, illegal constructions disrupted the market order of real estate transactions. The values of the illegal construction have always been covered by these negative evaluations. Thus they are kept away from the scope of legal protection. But the formed ideas and behaviors are denied now on. In the terms of pragmatism, if the illegal construction have certain economic values, they will be retained by governments with the chance to correct the formalities. Besides, though the builders did not correct the formalities, in the judicial practice, they still have allowable interests on the construction and these constructions also be protected.Although the question “whether the builders have the rights, and should the illegal construction be protected?” have got confirmed, theorists still have less discussions on the area, the courts also do the different. Recently, there are several cases cause people’s attention. So I cash the chance to do a systematic study on the illegal constructions.In addition to the introduction and the conclusion, the content of this paper is divided into three chapters, which are the illegal construction and the property law, the illegal construction and the contract law, the illegal construction and the tort law. I hope to clever the route of judgments and offer the guidance.The first chapter is divided into two parts. The major task is to clear the situation of the illegal construction in the property law. And then solve the questions in this area. First, I introduce the illegal construction, including concepts, classifications. Then I will conclude the feathers of this kind of buildings. The main object this paper concerns is house. Second, in the terms of the legislation, judicial practice and the academic, I will discuss the whether the illegal construction is a kind of object in property law and which kind of objects it belongs to. In my view, the builder should be given the real estate ownership. Then I will discuss the neighboring relationships and so on.On the basis of the chapter one, the content of the second chapter is focus on the controversial points about the illegal construction in the contract law, including the trade contract and rent contract. In the part of the trade contract, I will analysis the validity of contract in the terms of the legislation, judicial practice and the academic. In the detail, on the basis of the judges’ thoughts, I discuss the questions from the article 52(the contract law),and the relationship between initial Impossibility and validity of contract. I think without the special facts the trade contract is effective. Then I will discuss the performance of the contract. At the end of this part, I will discuss something about the building with the illegal part. In the part of the rent contact, the main questions are the validity and performance. Although the judicial interpretation has already give the answer, I don’t think it is reasonable. In my conclusion, both of the contracts are validity, and it doesn’t conflict with the government’s manage.The content of the third chapter is damages issues on the illegal construction, including the claim and methods. I will compare the results and reasons between courts, and give my own conclusion. In other words, I will detail the methods. We can not take a single action-compensation of building materials. In practice, we also should consider claims for restitution and claims for the cost of full benefit.