The Research Of Damage Compensation For Illegal Construction

For the prevention and treatment of illegal building,the provisions are not the same in the different countries.On the value judgment of China's current legislation is that the law take an absolute negative position on illegal buildings and do not recognize the illegal building of any rights and interests.However,this way of taking an absolute negative position on illegal building does not enhance the intensity of regulation and management of illegal buildings,on the contrary,because of the neglect of the economic value of the illegal building itself,which leads to more and more intractable disputes.Illegal building cannot be recognized in public law because of the violation of the substantive elements of the building permit,it is difficult to carry out the registration of property rights,but also face the risk of being forced to dismantle.But in private law,we should admit the illegal buildings exist some certain private rights,cannot be allowed to wanton violation and destruction,otherwise it will seriously affect the stability of social order,resulting in a waste of social wealth.In this paper,I use the illegal building of infringement damage compensation problem as a starting point,to explore under the existing legal system,if the illegal buildings are infringed,whether they can get relief and how to remedy relief.In the insistence on the illegal building should be given relief when to be infringed,using the method of interpretation to explain the existing law,we found that it is difficult to get relief when the illegal building is infringed,so we should adopt legislative theory method,through the improvement of legislation to give illegal building damage claims when they are infringed,in order to protect the interests of the illegal building of the balance and stability of social order.This article mainly includes the following parts.The first part,as,a theoretical premise to study the damage compensation for illegal building,mainly elaborated on the definition of illegal building and equity qualitative issues.We often replace the use of "illegal building" and"illegal building" in theory and practice,although both can be regarded as synonyms,but in the legal system still have a uniform title to ensure the identity of the legal concept,make the word of "illegal building" more standardized.The conceptual connotation of illegal building should be revealed from three aspects:illegal building violates the broad "law" rather than the narrow "law";illegal building should emphasize the feature of"unlicensed";illegal building should also include "beyond the scope of the permit" situation.At present,China's theoretical and practical circles identified illegal building properties as "real estate ownership",not strictly in accordance with the provisions of our current legislation,the way to protect the ownership of real property is confronted with difficulty because the violation of China's current legislation basic requirements only legitimate property can be protected;but the adoption of legislative standpoint to implement the "judge made law","Movable property ownership" confuses the division of real estate and movable property;"Possession" seems to be possible,but can the proper relief be obtained when the illegal building is damaged,lost or interrupted,it needs to further study its legal effect.The second part,to take an explanatory stand,mainly expounds the consensus of the theoretical realm is that illegal building shall be compensated when infringed,to explore how to relief the illegal building when it is infringed,explain the shortcomings of existing relief and its efforts.When the illegal building is infringed,the theory of "no relief" deviates from the value of justice and order,"Compensation theory" lacks legal basis,only "should be relief theory" to distinguish between illegal building in public law on the illegality and private law interests,worthy of recognition.But on the premise of adhering to the "should be relief position,the relief path of "Protection of movable property ownership" can be partially established in the perspective of interpretation theory,but through the protection of the property rights of building materials to achieve the damage to the illegal building of the relief has great limitations;"Protection of possession" path is also facing relief problems,the first one is that the illegal building of the "protection of possession" path is still difficult to bypass the underlying right issues,the second one is that the builder lack of possession of the right on the illegal building can only be established malicious possession,it is difficult to obtain protection of tort damages.In view of the failure of the existing relief route,want to really affirm illegal building in our legal status,in order to achieve the illegal building of the claim for damages,should be changed with the aid of legislation.The third part,to take the legislative stand,through the investigation of the different countries and regions of the illegal building of qualitative and tort liability,advocate drawing on the French model,both to admit that the illegal building can enjoy the ownership of real estate,but also limits the ownership which is obtained through illegal acts,To distinguish between legal building and illegal building of different legal protection efforts,to distinguish between legal building and illegal building of different legal protection efforts.Our country should remove the "legal" two words in the "property law" Article 30 "legal building"to achieve the violation of illegal building damage compensation relief path;by excluding infringement of illegal building led to "the use of interruption" of the damages,reflecting the the difference between them;through a clear violation of the illegal building of the damage caused by the form does not include the restoration of the status quo,to prevent the legalization of illegal building;by determining the principle of non-application of the principle of negligence and the determination of the scope of the specific compensation for the violation of the amount of damage to the building of the amount of compensation.