Administrative Law Thinking About The Purchase Restriction Order Of Commercial Housing

The housing problem is related to the national economy and the people's livelihood,the exorbitant house price has been a social problem that needs to be solved urgently.With the continuous escalation of the government's regulation and control measures on the real estate market,the restrictions on the purchase of commercial housing have aroused controversy from all walks of life,with some supporting and some opposing voices.Supporters believe that they have indeed served to curb housing prices and discourage investment house purchases,while opponents believe that they are contrary to the law,does not meet the requirements for administration according to law.Restrictions on the purchase of commercial housing mainly include the restriction on qualification and the number of house purchased,and the restrictions on the course of commercial housing transactions.To a certain extent,restrictions on the purchase of commercial housing have its own rationality,we cannot deny the role and the value of restrictions on the purchase of commercial housing completely.Restrictions on the purchase of commercial housing are the administrative normative documents which formulated by the State Council and local governments of the People's Republic of China in the legal nature,and also belongs to the abstract administrative acts.As an abstract administrative act made by the executive branch,the purchase restriction order must be examined in the legal framework.With the transformation of the functions of modern government and the transformation of the administrative management,the traditional administrative law is facing new challenges.It is difficult to fully respond to the complex problems of public administration by relying only on the traditional legitimacy theory,in particular,for administrative activities in the field of housing,the purchase restriction order for commercial housing is an administrative regulation policy that the government intervenes in the real estate market in order to achieve the goal of the Macroeconomic regulation,therefore,on the basis of the new theory of Administrative Law that has emerged in recent years,and drawing on Professor Zhu Xinli's two-dimensional framework of "legitimacy" and "optimality",the author tries to combine Administrative Law with other disciplines,such as Public Administration and Administrative Decision Making,to analyze the restrictions on the purchase of commercial housing more comprehensively.From the aspect of administrative legitimacy,the paper mainly discusses the problems of overstepping the authority of the subject,the conflict between the content and the superior law,and the defects of the procedure.From the aspect of administrative optimality,the paper discusses the problems from two aspects: the administrative discretion and the principle of proportion,the democratic and scientific decision-making,the conclusion is: Although the government can exercise the discretion to limit the purchase of commercial housing,however,it must be exercised within reasonable limits,that is to say,the principle of proportionality should be applied;democratic participation and expert argumentation are obviously lacking in the decision-making process of the purchase restriction order,so it is necessary to pay attention to the strengthening of democracy and science in the procedure.In order to make up for the shortage of housing purchase restriction order and bring it into the orbit of rule of law,the author suggests three aspects to be improved.Firstly,to clarify the position of purchase restriction order as a temporary supporting measure;secondly,to improve the procedure of purchase restriction order;finally,to wide the way of the purchase restriction order'ssupervision and relief.In addition,the author also tries to put forward some suggestions to perfect the housing regulation from other angles,that is,to strengthen the thought of classified regulation,to perfect the real estate tax mechanism,and to improve the housing security system.