| With the acceleration of urbanization in China,housing expropriation due to the reconstruction of old urban areas has been put on the agenda by local governments.Both the constitution and the property law of our country have made it clear that conforming to the public interest is the prerequisite of expropriation,but have not explained what is the public interest.In 2011,the regulation on expropriation and compensation of houses on state-owned land made a general enumeration of the public interests in the expropriation of houses on state-owned land,explaining for the first time what is the public interest,which is a great progress in legislation.However,item 5 of article 8 of the regulations is vague about the expropriation of rebuilt houses in old urban areas,and the public welfare judgment of construction projects is in dispute.And in the land expropriation of urban planning expropriation provisions and housing expropriation provisions also exist in contradiction.On the one hand,public interest is a typical legal concept of uncertainty,which is characterized by abstraction and times,and difficult to describe in detail.On the other hand,the reconstruction of the old city involves the balance of various interests,which,if not properly handled,may easily lead to social conflicts and disputes.All these problems make it difficult to explain and judge the public interest requirements of housing expropriation in the reconstruction of old city.The requisition of public interest in the reconstruction of old city can be divided into the requisition of old area and the requisition of planning.The requirements of the old area refers to the provisions of article 8,item 5,of the regulations on the expropriation and compensation of houses on state-owned land,which requires the expropriation of houses on the lots with dangerous houses and backward infrastructure.There are relevant regulations on the types of dangerous houses and infrastructure in the legislation,but the expressions of concentration and backwardness are vague and lack reasonable quantitative indicators.At the same time,the elements of the old area have regional characteristics.Based on the actual expropriation and construction and the needs of urban planning,some non-dangerous houses and not backward infrastructure can also be included in the scope of expropriation.Planning requirements refer to the provisions of article 9 of the regulations on the expropriation and compensation of houses on state-owned land.The expropriation of houses in the reconstruction of old urban areas must conform to the "four plans and one plan",that is,the national economic and social development plan,the overall land use plan,urban and rural planning and special planning,and the annual plan of national economic and social development.Planning requirements are one of the important bases for the court to determine the public interest,but there are exceptions,such as unreasonable planning,in order to meet the needs of the public interest,can be granted beyond the scope of the planning levy.Theoretically,the planning itself has the property of public interest,but in practice,there are some defects in whether the planning can ensure the public welfare and the judicial review of the planning requirements.In addition,the realization of public interest is inseparable from the corresponding procedural mechanism.In the local legislation,the "second consultation" procedure is innovatively explored for the expropriation of houses in the reconstruction of old urban areas,that is,the expropriation willingness and compensation scheme of the expropriated are consulted respectively,and the expropriation can only be carried out if the required consent rate is reached.In judicial practice,this procedure has become a procedural element to realize the public interest,which is of great significance to the realization of the public interest,but there are still many problems to be discussed in the system design and practice. |
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