The Research On Denominator Of Environmental Regulatory Taking In The America And Its Enlightenment To China

The emergence of environmental regulatory taking in America is to solve the problem that the government severely restricts the private property rights in environmental regulation.This concept is relative to the traditional taking,although the government's regulation does not directly deprive "ownership",but restricts a certain use of property,according to the modern property rights,this restriction may still lead to the loss of all or part of the economic use of a property,resulting in similar expropriation effect.When judging whether a government regulation "goes too far",we can't avoid discussing the denominator problem.It is very important to determine the denominator when comparing the property affected by regulation with all the property rights owned by the property owner to determine the degree of property damage.If only a small piece of land is involved,the denominator is easy to judge,but in the face of the owners of many properties,the court always divides the property to determine the denominator based on the consideration of fairness and justice.In addition to the real separability of property in space,the theory of "bundle of rights" in the America also divides a property right into several rights,but the status of each right is not the same,and the core rights will attract people's attention.In the case law of the America there have been cases of environmental regulatory taking with space severance(horizontal severance and vertical severance),functional severance and temporal severance.According to this,there are two standards: unity of ownership standards and the core property right standards.Protecting the environment is a basic national policy of our country,and the administrative action of the government in the field of environment may also severely restrict the property right.In order to solve the problem of government's excessive control infringing people's property rights,the paper uses the theory of the denominator of environmental regulatory taking in American law for reference,and improves the collection system in China.In short,it is necessary to establish an environmental regulatory taking system and improve the judicial review system in China.At the same time,it is necessary to establish the denominator recognition standards from the unity of ownership standards and specific economic use standards,so as to make the environmental regulatory taking system more scientific,reasonable,objective and quantifiable.