A Study On The Tort Liability Formation And Damages Of Substantive Illegal Constructions

In practice,there is no distinction between procedural illegal constructions and substantive illegal constructions against tort on illegal constructions which are handled simply by way of compensation for constructions materials.However,procedural illegal constructions have been seen to be equivalent to legal constructions in nature,the characteristic of serious damage to the social and public interests of substantive illegal constructions limits substantive illegal constructions property and thus affects substantive illegal constructions compensation for damages.This paper is divided into four parts except the introduction and acknowledgment.The first part is to define the substantive illegal construction and discuss legal characteristics of substantive illegal construction.Firstly,It's to define the substantive illegal construction,emphasizing the "Planning Permit of Construction Land",the right to use land for constructions," Planning Permit of Construction Project" and the serious social harmfulness in the definition of substantive illegal construction,denying the "Construction Permit of Construction Project " in the definition of the substantive illegal construction and the Supreme Court's view of urban-rural planning as a single element of defining illegal constructions.Secondly,the contract signed by the substantive illegal constructions as the subject matter is invalid,because it is against the principles of public order and good customs caused by the characteristic of serious damage to the social and public interests of substantive illegal constructions,so the substantive illegal construction can't be leased and traded.Moreover,because of the dismantled fate of the substantial illegal construction,there are only negative neighboring rights.These characteristics of substantive illegal construction affect the scope of damages and the subject of damages,but don't have an effect on lawful possession of the substantive illegal construction.The second part demonstrates the tort liability formation of substantive illegal constructions.First of all,it is affirmed that the tort of substantive illegal constructions is accepted by the court in procedural law,but the institution that determines whether the construction is a substantive illegal construction is an administrative institution.Therefore,during the trial,the court can suspend the trial to prevent double litigation.Secondly,the tort liability formation and damages are established because substantive illegal constructions exist the real estate property.And if violations are allowed to wantonly infringe upon the substantive illegal constructions,the violations will take a replace the administrative institution,so the hypothetical causality is established;Thirdly,non traded nature of the substantive illegal construction determines that the owner can only be a builder and its heirs who are the victims.The third part demonstrates the damages of the substantive illegal construction.Under recognizing the existence of real estate property in a substantive illegal construction,only damages for construction materials is untenable.For the prospect interest loss of substantive illegal constructions that are infringed,because substantial illegal constructions are not rented out,there is no loss of profitability,even to the extent that it can only claim less than the agreed rent.The actual losses are lower than that of non-substantive illegal constructions due to the characteristics such as not to be leased,non traded and only negative neighboring rights.In summary,the damages of substantive illegal constructions are lower than damages of non-substantive illegal constructions,which can also be corroborated by expropriation and compensation,.The damages for substantive illegal constructions that is lower than the compensation of legal constructions is not based on the victim's fault.It doesn't lessen the responsibility of violations.The principle of complete compensation is still be followed.The fourth part summarizes the views of this paper.