Study On The Identification Standard Of Regulatory Taking

In order to safeguard the public interest,it is inevitable to restrict citizens’ property rights in certain cases.In the mode of restriction of property right,levy is the direct and obvious deprivation of property right,and the social obligation of property right is the obligation that the owner of property right should bear.In addition,there is another kind of property right restriction mode between the the first two,which is the Regulatory taking discussed in this paper.Regulatory taking does not meet the standard of levy,but its degree of limitation exceeds the general social obligation of property right.Emphasis on social responsibility of property rights too much can make civil rights can not get the necessary security so as to affect the market run,emphasis on private right protection too long sometimes will affect the realization of the interests of the public,so compensate for Regulatory taking became the balance of the social public welfare and an important means of private property rights.In practice,few cases of controlled expropriation in our country have been recognized and given necessary compensation,because our country has not established a set of clearly applicable regulatory taking system in law.The identification standard of regulatory collection has become an important link among them,based on the national conditions of our country to establish a clear and operable identification standard of regulatory taking can effectively promote the development of regulatory collection system.The first part of this paper will analyze the court cases,clarify the importance of regulatory taking compensation system,as to emphasize the importance of regulatory taking identification standards and the necessity of discussing this issue.The second part of this paper will analyze the theories accumulated in the field of Regulatory taking and explain the role of special sacrifice theory in the field of Regulatory taking from three aspects,then it discusses the development and evolution of the degree of loss of property value in practice through the classic cases of regulatory expropriation in the United States.The third part will carry on the normative analysis.This paper finds out the regulations and compensation rules of Regulatory taking in the current legal system of our country and finds out the laws of regulatory expropriation from the existing legislation.The fourth part will summarize the specific standards for the identification of Regulatory taking under China’s current national conditions.These standards should be practical and operable and can be judged according to specific cases.Regulatory taking must first constitute a special sacrifice,for the existence and development of the public interest,the specific private rights subject makes the public benefit or enjoy convenience,and its property rights are restricted by the public power.At the same time,the value of their property has to be lost to a certain extent,specific can be identified from three aspects: one of the aspects is the loss of all the value that the property can use;second,the act of public power has carried out permanent physical encroachment on property;third,although the value of the property can be used has not been completely lost,the degree of its impairment has affected the production and life of the property owner.However,there are three circumstances under which regulatory collection should not be recognized: the original use of the property is not restricted、the limitation of the parties to the property right is predictable and that the exercise of property rights infringes upon other legitimate rights.