Study On Private Law Issues Of Illegal Buildings

The natural defect that the construction behavior of illegal buildings violates public law causes people in understanding their status in private law.The status of illegal buildings in property law is not a purely private law issue,involving the coordination and interaction between public law and private law.Clearing the private law status of illegal buildings can not only help people resolve disputes concerned illegal buildings,such as ownership,contract,and infringement,but also help people deepen the understanding of the relationship between public law and private law,and provide reference for the settlements of similar illegal property issues.Article combines the academic views and analyzes them critically,finding their insufficient.Then,article carries out specific arguments and draws some conclusions.Illegal buildings do not lose their objective attributes as immovable property because of their violation of public law.By studying from the origin of ownership,the principle of the control of public law,and normative analysis,article considers that public law can not change the ownership of illegal buildings,and that builders must obtain the ownership of illegal buildings.Based on the principle of private law of "no prohibiting means freedom",we should regard Article 30 of the Property Law as an advocacy norm.Therefore,builders’ ownership of illegal buildings does not conflict with the Property Law.The builders do not lose the ownership of the illegal buildings because of the illegality of the construction behavior,but does theirs’ ownership need to be restricted? The harmfulness of the subject matter dose not result in the harmfulness of the legal act.Generally,the harmfulness of the illegal buildings will not change because theirs’ geographical location and physical form will not change.Theirs’ circulation does not harm the interest of the state or public.Therefore,the validity of transfer,mortgage,inheritance,auction,enforcement etc.of illegal buildings that are based on theirs’ circulation should be recognized.According to the rule that no prohibiting of the severer,no prohibiting of the lighter,the rental behavior of the illegal buildings should not be restricted.Property should be neutral in law,without the distinction of legality or illegality.The distinction of legality or illegality only lies in the act of the obtaining of property.When illegal buildings are infringed,we should give relief to owners.Theirs’ construction behavior violates public law,so there should be differences between illegal buildings and legal buildings about relief routes and the amount of compensation.