Research On The Compensation Object Of Homestead Expropriation

In the process of urbanization development,a negative cycle of frequent expropriation of homestead and the obstacles to the advancement of demolition work formed a vicious circle The central issue is the chaos that compensate and distribute too much or too little.With the continuous advancement of collective land reform,collective business construction land entering the market and homestead reform are linked,land acquisition and collective business construction land entering the market are cross-game,expropriation of homesteads is still an important way of land use,therefore,how to legally and reasonably carry out the acquisition and distribution of homestead and the houses above them has become the most important part in the process of land acquisition and homestead reform.Previous studies on land acquisition and house demolition have focused more on the analysis of public power issues in the fields of constitution and administrative law.Private law research is lacking,and it cannot be combined with specific practical operations.It lacks the integration of private law culture and the concept of rights,and it is difficult to reach the essence of the problem.As a result,the expansion of regulatory documents and the barrenness of actual utility have caused a large gap,making reform difficult.The house base collection and compensation is arranged by the provincial-level institutions,and there is no specific regulation for the unified calculation of compensation fees.There are great differences in practices in various places,and the compensation lacks a legal basisThe main prominent problem in the practice of the house site expropriation compensation system is that:First,in the land compensation fee,the weight of the object of compensation for collective land ownership and the right to use the homestead is uncertain.This is mainly due to the lack of laws and regulations.Different regions have different approaches to compensate for the right to use the homestead.In the practice of the right to use the homestead,there is also a difference in the compensation allocation ratio between collective land ownership and farmers'right to use the homestead.Secondly,in the calculation of compensation fees,it can be seen from the calculation formulas in different places that the distinction between the two compensation objects of homestead and house is not clear.The calculation formula mainly includes two factors,the base price and the area.On the one hand,some of the benchmark prices of house compensation fees is determined to include land value compensation,that is,the integrated compensation of the land and the house has been adopted;on the other hand,in terms of area determination,when area is standard,whether the area determination of the compensation for house ownership distinguishes distinguish building floor area and floor space is inconsistent,and the practice of whether to limit the area when the area of compensation for the premises is documented is different;and when the area exceeds the standard,it is also different to determine whether to compensate for the excess.Thirdly,for the current compensation standard for house site compensation,there is irrationality to compensate according to the current compensation rate for cultivated land,and it is impossible to realize the protection of the house site to farmers.Fourth,in addition to the above-mentioned land compensation fees and house compensation fees,the nature of other fees such as settlement subsidy are not clear,and compensations are arbitraryThe root of the problem of compensation for homestead lies in the imbalance between the adjustment of public law and private law,and the nature and scope of rights of compensation objects on homestead are unclear.In the past,homestead management tended to emphasize the administrative functions of management and approval from the perspective of public law,ignoring the significance of the homestead private law.On the one hand,the excessive involvement of public power has led to a lack of justice and efficiency in the compensation of private rights.To relieve the public-private conflict and to protect the needs of farmers,excessively meeting the requirements beyond legal principles will also cause compensation to exceed its reasonable carrying capacity,In fact,it brings more hidden dangers;On the other hand,the vacancy of private rights leads to the inequality of the legal level and the level of enforcement capabilities.The incompleteness of private land rights is the root cause of the limitation of public rights adjustment.In order to improve the system of compensation and distribution of homestead in essence,we need to explore the theoretical roots of compensation distribution from the perspective of clear property rights.Firstly,collective land ownership is a special private right with a guarantee nature generated in the context of China's public ownership.Its possession,use,income,and disposal power are all restricted by its unique management and distribution autonomy.Secondly,the right to use homestead land is a kind of special usufructuary right that is allocated out of collective land ownership and is restricted by the nature of security,it has the right of possession and use rights which are similar to ownership.Finally,the ownership of the house on the homestead is the private ownership with limited disposal rights due to the security function.The nature and scope of rights on the homestead are the basis for determining their functional value and making reasonable compensation allocationsThe clear allocation of rights on homesteads is very important for establishing a complete system of collection and compensation object systems and thus regulating homesteads expropriation compensation system.The property rights on the homestead are a complete set of rights bundles that include special capabilities such as ownership,possession,use rights,income rights,and disposition rights.Not only must the collective ownership be compensated,but the status of the compensation object of the homestead use rights needs to be clear,and to clarify the compensation standards and compensation scopes of house ownership and other rights under the protection function of the homestead.Therefore,when expropriating homesteads and the houses above them,taking the functional value of various rights on the homestead as the core and distinguishing according to the type of the homestead,compensating separately of house and land can clarify the rights and interests of each right holder corresponding to the compensation distribution more explicitly.First of all,for homestead compensation,the owners of the right to use the homestead and the collective enjoy the land compensation fees,which should be reasonably allocated.The compensation standard is based on the land market transaction price,taking into consideration various factors such as land location,status,and acquisition purpose;Compensation for the houses on the homestead shall be based on the ownership of the house and the replacement cost shall be the compensation standard.Compensation for the loss of the house and the loss of relocation shall be given to the owner.