Research On The Regulatory Takings System In China

In modern society,the state for the public consideration is bound to carry on varying degrees of the interventions and restrictions of private property,through the rational allocation of the limit resources in order to achieve a wider range of social interests.China's Constitution clearly stipulates that the state can expropriate or requisition the private property in accordance with the law and give the compensation for the national welfare needs.But legal restrictions on private property rights are not limited to expropriation and requisitionin reality,some restrictions on private property rights may exceed reasonable restraint.However,the law has not stipulated in this situation,leading to the infringement of private rights can not be obtained the most basic compensation through legal channels.In the case of the excessive restrictions on the property rights which between the reasonable restriction and expropriation,if there is no law to regulate it and provide the appropriate relief for the right holder,the vacancy will be likely to become the multiple zone of a property intangible damage.For the social problems which have not caused the expropriation but constitute the loss of value of the private property,although there is no corresponding solution in our country,The United States has already played a leading role in this field,the advanced and mature experience is very worthy of our reference.With the occurrence of related events in social life and the enhancement of civil rights consciousness,the grey areas will inevitably lead to social concern and scholars' attention,calling for the improvement of the existing legal system,building a set of operational regulatory takings system in our country to better protect the private property rights and effectively supervise the exercise of public power.In addition to the introduction and conclusion,the article is divided into four parts:The introduction part starts with the phenomena and problems.Firstly,it discusses the process of the rise and fall of ownership and the transformation of government functions and provides the basis of legitimacy for the restriction of ownership.And then it enumerates the ownership over constrained case in China,although for the purpose of the public interest allowing ownership restrictions,over this excessive situation,our country does not give the right to provide appropriate means of relief,which leads to this paper focuses on the study of regulatory takings system.The first part analyzes the theoretic basis of the regulatory takings.Firstly,it introduces the concept and origin of regulatory takings and analyzes the unique characteristics.The following mainly introduces some representative theories of regulatory takings of the United States and Germany,which are gradually refined by judicial precedents.Finally,it analyzes the value of regulatory takings system.The second part focuses on the feasibility and necessity of setting up the regulatory takings system in China.Respectively from the two aspects of legal status quo and practical examples demonstrate that the existence of excessive restrictions on ownership,indicating the urgent need to establish a regulatory system in our legal system to adapt to social needs.At the same time,based on the existing legal system,capture the sporadic legal norms of the relevant regulatory takings as a legal foothold to establish our regulatory takings system.The third part introduces the reference value of American regulatory takings system to China.It analyzes and discusses three aspects of American regulatory takings: formation,standard and relief way.we can see that all aspects of the system are not suitable for China's legal reality,we must carry out appropriate reference according to the legal situation in China.The fourth part puts forward the tentative idea on the construction of our regulatory takings system.First of all,we should increase the provisions of the Constitution on property restrictions,improve the existing property rights of the incomplete logical structure,and conduct a separate legislation in the property law to provide the basis for the right to seek relief.In addition,in the specific construction of the regulatory takings system,from the judging standards,relief measures several aspects of the system design,can generally construct a complete regulatory takings system to meet the social needs,and eliminate the right relief vacuum,to provide more effective protection for the property rights and to restrict the abuse of public power more effectively.