Research On Judicial Review Of Regulatory Takings In China

In modern society,with the development of economy and the increasing refinement of social division of labor,the state is increasingly restricting and depriving property rights in some form in order to achieve optimal allocation of resources and maximize public interest.China's constitution,property law,etc.all provide for traditional takings,but there is no provision for excessive restrictions on property rights,that is,regulatory takings.However.there are a lot of cases of excessive restrictions on property rights in real life,and the lack of institutional resources leads to the difficulty of protecting rights,which the judiciary must respond to.Based on an in-depth analysis of the mature foreign regulatory takings judicial review system,combined with China's reality,adopt a "Relative rationalismr" attitude,apply legal transplantation to the extraterritorial regulatory takings system in a flexible manner in litigation,and give priority to the construction of China's regulatory takings judicial review system has certain significance.In addition to the conclusion,this paper is divided into four parts.The first part is the introduction.First of all,we start with specific cases in China,and point out that a form of over-restriction of property rights that is different from traditional expropriation brings challenges to theory and practice.Urgent judicial remedies are needed.which leads to the establishment of a judicial review system for regulatory takings in China,which can enrich the theory of property rights protection in our country and provide reference for judges to try related cases.And through the method of literature analysis,it points out the current situation of insufficient research on judicial review of regulatory takings in China.The second part is the basic theory of regulatory takings.Firstly,it introduces that regulatory takings refers to the behavior of actual takings effect caused by excessive restriction of property rights,and points out that regulatory takings arises from the process of balancing ownership protection and public interest.It is the practice of understanding that excessive obligation of ownership should be compensated.Then distinguish between regulatory takings and traditional takings from the taking subject,etc;It also points out that the main difference from inverse condemnation is that the latter is determined in the sense of judicial relief,while regulatory takings is in the sense of behavior.The third part analyses the necessity,feasibility and practical optimality of establishing judicial review of regulatory takings in China.We can see the necessity of regulatory takings judicial review from the fact that there·are a large number of excessive restrictions on property rights,the lack of regulatory takings legislative resources and a large number of legislation without compensation provisions,and the dilemma of judicial review.On the other hand,the paper expounds the feasibility of judicial review from two aspects:the available resources in legislation can be used as the foothold of judicial review,and the review of regulatory takings by Chinese courts has gradually formed a system.In addition,the limitations of the legislative model are compared with the advantages of judicial review in overcoming legislative limitations and protecting rights in a timely manner,indicating that the establishment of a judicial review model in the emerging stage is optimal.The fourth part discusses the concrete construction of judicial review of regulatory takings from five aspects.First,by combing existing views and extraterritorial experience,it is pointed out that constitutional judicialization is currently not feasible in our country,and there is a suspicion of benign unconstitutionality in expanding the interpretation of statute law,and it demonstrates that Article 2 of the Administrative Procedure Law can be used as a basis of requisitional right of regulatory takings.Secondly,it points out that the revision of the Administrative Procedure Law has created a new space for judicial review of regulatory takings.It should prevent should prevent the situation of being prepared but not used.The scope of accepting cases in judicial review of regulatory takings can be expanded in individual cases,but it should still follow the mature principle.Thirdly,it points out that the basis of regulatory takings review can be concept law,public policy,administrative practice,guiding cases and international treaties.Fourth,through the analysis of the status quo of legislation and the consideration of public interests,it is pointed out that regulatory takings can only be authorized by the organic law,and formally comply with the principle of legal reservation.The focus should be on whether it conforms to the principle of due process,the principle of proportion and whether it is synchronized with the compensation issue.Finally,through the comparison and reference of extraterritorial laws and the combination of China's national conditions,it is concluded that the definition of regulatory takings must have three elements:public interest,special sacrifice,and substantial damage;the review of compensation matters needs to respect the discretion of the administrative agency itself,And fully explore the mediation and reconciliation system in the existing institutional resources;compensation standards should be determined as fair and reasonable standards,mainly limited to direct losses and material losses,but it can be expanded through individual cases.