| With the continuous expansion of urbanization in China,the corresponding urban and rural planning,construction management and supervision capabilities and laws and regulations have not been improved accordingly.Problems caused by illegal construction are constantly emerging.In the process of urbanization,the emergence of illegal buildings is unavoidable,whether in more developed cities,or suburban areas or in remote rural areas,there will be illegal buildings.This is closely related to the sustainable development of China's economy,the increasing value of the real estate industry,the increasing demand for housing,the difficulty of building approval and other issues.In recent years,the social media has constantly exposed illegal construction problems,such as: Beijing Renji Mountain Villa roof hill villa,Zhengzhou Qingqing Meilu District's most illegal construction group,Shaanxi Qinling villa and so on.And government departments are also increasing efforts to punish illegal buildings.We take Shanghai as an example: as a fast-growing city in China,the population of Shanghai is increasing every year.Naturally,the environmental pressure of the whole city is increasing,and the number of illegal buildings is quite a few.The Shanghai Municipal Government gradually began to pay attention to the comprehensive management of the ecological environment,the city began to integrate resources,began to dismantle illegal construction work and comprehensive environmental improvement.In order to promote the management of illegal buildingsin Shanghai,establish and improve the accountability system for demolishing illegal buildings,and safeguard the public interests,the government of Shanghai has also made efforts to control illegal buildings more than one year.From August 1,2009,the "Several Provisions on the Demolition of Illegal Buildings in Shanghai" was formally implemented.By August 2014,the Shanghai Discipline Inspection Commission and the Organizational Department of the Shanghai Municipal Party Committee jointly formulated and promulgated the "Measures for Investigating Responsibility for the Demolition of Illegal Buildings",and by July 2015,the Shanghai Municipal Housing Administration Committee for Urban and Rural Construction,Ten departments,such as the Bureau of Planning,Land and Resources and the Municipal Greening and Municipal Appearance Bureau,jointly issued the "Opinions on Further Strengthening the Comprehensive Control of the Ecological Environment in Some Areas of the Municipality".The documents were published one by one,and they are also being implemented in practice.Since 2015,Shanghai has intensified its efforts to punish illegal buildings.According to Jiang Zhuoqing,deputy mayor of Shanghai Municipal People's Government,the report on the comprehensive improvement of the ecological environment at the 32 nd meeting of the Standing Committee of the 14 th People's Congress of Shanghai on September 12,2016 shows that the comprehensive improvement of the regional ecological environment in Shanghai has been divided into two batches since 2015,the first batch involving nine suburbs.11 plots in districts and counties,and 17 plots in 16 batches in the second batch.The first batch of 11 municipal key plots covered an area of about 30.2 square kilometers,totaling 5,485 mu of illegal land,3.05 million square meters of illegal buildings were demolished,1,359 enterprises were closed down and eliminated,145 enterprises were investigated and punished,involving more than 30,000 illegal residents and employees.Through these data,it is not difficult to find that with the government departments in full swing demolition work,reduction work,grid management work carried out,but the private law has entered the field of illegal construction arising from the corresponding civil disputes are increasing,including illegal construction to buy Selling contracts are the most typical.After reviewing the court's precedents on illegal building sales contracts in recent years,it is not difficult to find that most of the courts decide that the contract is invalid because of the inherent illegality of illegal building.However,whether such a judgment can show fairness and justice,whether it reflects the principle of good faith,remains to be discussed.Under the dichotomy of public law and private law,the negative result of illegal construction from the perspective of public law should not completely affect the judgment from the perspective of private law.Therefore,the author thinks it is necessary to make a systematic analysis of the validity of the contract for the sale of illegal buildings from the perspective of private law.This article is divided into four chapters to conduct a detailed study and Discussion on the validity of the contract for the sale of illegal buildings.The first chapter will introduce the current basic situation and the existing problems from the social situation of illegal construction sales contracts and the current situation of court decisions in recent years.The continuous emergence of disputes over illegal construction sales contracts is inseparable from China's special national conditions.In recent years,with the continuous progress of urbanization,people's pressure on housing dwelling is increasing,housing prices continue to soar,out of the pursuit of human interest nature,the disputes over illegal construction sales contracts are increasing.In the judgment of the court,if the building is determined to be illegal,the majority is also the result of the invalid judgment of the sale contract.If such a reality can be divided into two parts,I think it is impossible.The fact is that such disputes are still increasing.If the contract is judged valid in judicial practice,it seems unacceptable to ordinary people,after all,can not ignore its "inborn illegality" problem,but if it is decided invalid by all means,the rights and interests of the parties can not be protected,the direction of guidance to the whole society is appropriate.These problems,let us feel more necessary to conduct an in-depth comb and discussion of illegal construction.First of all,sort out the basic attributes of the second chapters.The second chapter introduces the legal definition and classification of illegal buildings.The author thinks that before studying the validity of illegal constructionsales contract,we need to have a clear understanding and scientific definition of the legal concept of illegal construction,and also need to carry out a systematic classification of illegal construction.China's law does not clearly define "illegal building",but there will also be "illegal building" this view,through the process of our country's legislation,we can find that: "illegal building" is produced by the current legislative situation,with the continuous improvement of our country's legislation,in fact,"illegal building" It has already belonged to the category of "illegal construction".But for the clear definition of "illegal building",there are different views in academic circles,the author will discuss in detail in the main text.In order to better study the problem of illegal construction,academic circles have classified it into many categories.The author agrees with the classification of "procedural illegal construction" and "substantive illegal construction" according to whether they can be corrected or not.On the basis of thorough study of its basic attributes,the ownership of illegal buildings is discussed through the third chapter.The first part elaborates the current legislative situation,mainly from Article 5,Article 9 and Article 30 of the Property Law,to discuss the enactment of rights and the acquisition of initial rights,so as to prove that illegal buildings have ownership and the builder is the foundation.Acquiring ownership in the construction of this fact.The second part introduces the current academic views and expounds their own ideas.There are many opinions on the attribution of the right of illegal building in academic circles,such as "no ownership","real property ownership","chattel ownership" and "possession".The author agrees with the view of "real property ownership".This can be seen from the elaboration of the first part of this chapter on phenomenal legislation.Point of view.After confirming that the ownership of illegal buildings has been confirmed,we begin to discuss how to punish and protect them in the next chapter.That is to say,the fourth chapter begins to study the validity of illegal construction sales contracts,first of all,combined with Article 52,Items 4 and 5 of the Contract Law to analyze the "damage to the public interest" of illegal construction,and punishment of illegal construction sales contracts "violation of mandatory provisions" issues,and finally come to a conclusion,except for some individual.Besides,the sale and purchase contract for illegal buildings should be invalid.However,it should be emphasized that the contract for the sale of illegal buildings is effective,but the punishment of illegal buildings is not necessarily effective,the punishment of illegal buildings can not lead to changes in property rights.The second part introduces several theories of contract validity existing in academic circles and makes a brief comment on them.Some scholars believe that the contract for the sale of illegal buildings is a contract with pending validity;others believe that the contract for the sale of illegal buildings is invalid,of course,this is in favor of the aforementioned theory of possession as a basis for argument;if the illegal construction is the ownership,then the contract for the sale of natural validity.The failure to register in real right does not affect the validity of the contract,but only leads to the transfer of ownership.The third part discusses the implementation of illegal building sales contracts.In the contract for the sale of illegal buildings,the seller has two obligations,namely,the obligation to deliver the subject matter and the obligation to transfer the ownership of the subject matter.The builder of an illegal building can not transfer the ownership of the subject matter.Then the buyer can claim responsibility for the breach of the seller to make up for his losses.The reason why I want to write this paper is that the court decided that the contract was invalid because of the violation of the construction,which made me feel unfair,the corresponding rights of the parties were not guaranteed,and made me feel that this is the sincerity guided by the principles of civil law.The principle of real credit is contrary.It is too arbitrary to conclude that an illegal building sale contract is invalid only because it is recognized as an illegal building in public law.The judgement of the validity of the contract of illegal building should be based on private law.In retrogression,illegal construction is still widespread in our country at the present stage,and I believe it will continue to exist in the future,it is also of certain social value,is a component of social wealth.We should improve the civil and administrative system so as to better manage and control it and prevent its continuous spread.The author hopes that through this paper can be illegal construction salescontract combed again,can be explained clearly,explained clearly.If we can change the judicial practice of all illegal construction sales contract is invalid this phenomenon is better,and finally we can protect the balance of interests in illegal construction and social order stability. |
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