For the property rights,as part of fundamental rights of citizens,We have been accustomed to the two-level normative system of "guarantee-deprivation",but in fact there is still room for the restriction between the two.In the restriction of property rights,if such a regulatory act exceeds the necessary "degree",it may also cause undue infringement for private property rights and thus compensation should be given based on the principle of property rights protection.Based on the reality of our country,this article summarizes the practice by analyzing the basic patterns and main characteristics of the property rights restrictions that should be compensated in legislation and administration,and takes the cases as the foundation,presenting the current judicial attitude and treatment to these phenomena,pointing out that abide by logical legalism the courts are not willing or able to cope with the social reality.Then this article explains the necessity of compensation,the constituent elements,and the reasonable structure of "restriction"and "compensation" judgment under the trend of alienation in judicial review approaches.From three perspectives of why,what and how,these theories provide basic instructions for accurately understanding and grasping the system of the property rights restrictions that should be compensated.Based on the analysis of the possibility and insufficiency of remedies under the existing normative system,this article tries to construct the "dichotomies" type judicial review approach by respecting the right of right holders to revoke lawsuits or claims for direct compensation.However,from the perspective of the roots,in the face of the complex system of the over-restrictive behavior of property rights that should be compensated and the absence of normative norms,the constraint of judicial capacity itself and the negative behavioral logic of courts under the hierarchical organization makes it unrealistic to expect the court to exercise discretion.The real establishment and effectiveness of the system of the property rights restrictions that should be compensated still require systematic changes in the legislative,administrative,and judicature,then finally establish a three-dimensional legal control system from the three dimensions of system formation,implementation,and effect evaluation. |