Title: Property Law and Regulations on Collection and Compensation
The procedure of soliciting public opinions with great fanfare on the collection and compensation regulations has ended, and now it has entered the stage of national policy orientation. The author once asked for opinions in the Legislative Affairs Office of the State Council, and mentioned such a crucial issue, that is, in the new Regulations, the Property Law, as a superior law, did not find any place in the Collection Regulations that met the public opinion. According to the author's hard study of the property law in the past three years, and through the stormy course of demolition, I know the psychological reaction of the demolished people to the property law. According to public opinion, the the State Council Legislative Affairs Office abolished the original Regulations on the Administration of Urban House Demolition and formulated new regulations, which was the aspiration of the people and won public opinion.
20 10 10 10/29, the State Council legislative affairs office publicly released the draft for comments on the internet, with the aim of formulating a regulation on expropriation and compensation for the whole country, so that the expropriation of state-owned land, that is, local government departments, expropriated people and related rights holders can accept this new regulation, which is conducive to promoting social harmony and compensation in the process of expropriation and compensation. The author believes that the formulation of the new "Regulations" should be rigorous and must be based on China's Constitution, Property Law, General Principles of Civil Law, Contract Law, Urban Real Estate Management Law, Administrative Procedure Law and Criminal Law. In accordance with the State Council General Office (2004) No.46 "Notice on Controlling the Scale of Urban House Demolition and Strict Demolition Management" and other national laws and regulations, as well as the judicial interpretation of the property law by the Civil Law Office of the NPC Law Committee and the understanding and application of the property law by the Supreme Court, new regulations in line with national laws and regulations should be formulated, so as to become the spokesman of the people of the whole country, or at least the overwhelming majority of the people in the country. After the new "Regulations" were issued by the state to solicit opinions, the opinions were collected and sorted out, and the author also solicited opinions from authoritative experts in law, and formally put forward the opinions of 12 representing public opinion to the Legislative Affairs Office of the State Council. In order to discuss with netizens, the author once again summed up 12 opinions, and made a clean breast of them, aiming at attracting more attention and doing what China citizens should do for the birth of the new regulations.
First of all, according to the legislative idea of the Property Law, we should standardize the provisions on expropriation and compensation of houses on state-owned land.
In the draft for comments, the Property Law, as the superior law, has not been written into the new regulations. The author wrote to the Legislative Affairs Office of the State Council twice and put forward his own views. In the second draft, the author lists two fables commonly used by the people: one is "Ye Gong is good at dragons". In the fable, Lord Ye worships dragons and is good at them. He talks about dragons in front of people every day, saying that dragons are infinitely beneficial to people. Later, the story really fell from the sky, and everyone knelt down and prayed for the dragon king's blessing, but Lord Ye was scared half to death by the dragon. Another fable is "painting cakes to satisfy hunger". For the long-awaited vulnerable groups, this property law is like a cake in "painting cakes to satisfy hunger". This kind of cake can only be seen by hungry people, but not eaten by hungry people. In other words, the legislators of the new regulations failed to make the property law stand firm in the new regulations. In my opinion, this is a disrespect to the legislators of the property law, and it also disappoints those who insist on claiming rights with the property law.
The author thinks that the new regulations should conform to the legislative idea of property law, standardize the provisions of expropriation and compensation, and be different from the original demolition regulations.
Secondly, the author thinks that adjusting the property right system is a national policy of the country in the new period, and the formulation of property right law by the country is the need of historical development, the achievement of reform and opening up and a milestone in the new period.
On March 8, 2007, when Wang Zhaoguo, vice chairman of the National People's Congress, explained the draft property law at the conference, he officially announced to the people of the whole country that the property law would be born in China. The author is a law lover, especially interested in property law. As a lessee, the author has conducted in-depth research and exploration on "usufructuary right" and written some monographs. The author thinks that the object stipulated in the second and third paragraphs of Article 42 of the Property Law and Article 12 1 of the Property Law is the basis of building a well-off society in an all-round way in China. Looking back at the history, in the history of our country, China led the people of the whole country and experienced land division, land reform, private ownership reform, housing reform and enterprise reform from the agrarian revolutionary war, all of which were milestones in the reform of real right system in various periods. The establishment of "usufructuary right" in Property Law is the starting point of property right system reform in the new period and a new milestone in the historical extension of China's property right system.
On August 30, 2007, the National People's Congress deliberated and passed the amendment to Article 6 of the Urban Real Estate Management Law, which belongs to the third paragraph of Article 42 of the Property Law. It can explain how important the third paragraph of Article 42 of the Property Law is in the decision-making of the CPC Central Committee and the State Council. The promulgation of the Property Law and the revision of the above-mentioned legal provisions by the state focus on the livelihood of the vulnerable groups, which should also be the general plan of governing the country adopted by the Central Committee of the Communist Party of China and the State Council in the new period. Lawmakers of the new regulations should also pay attention to the national policies in the new period, and should write this legislative idea in the property law into the new regulations to improve the elements of governing the country.
Third, to develop non-public interests, we must also implement and implement the property law.
Even if it is not public interest development, we must implement the property law. Property law establishes usufructuary right, first of all, it is "the right to use construction land", and the main target is developers, who can make legal profits by using this clause; The Property Law stipulates that "the established usufructuary right shall not be damaged", which is to ensure that residents in the development zone can benefit from real estate development and live and work in peace and contentment. Belonging to the law of equal protection, it is the legislative intention and purpose of the property law. According to the judicial interpretation of the Supreme Court, "the principle of equal protection of property law fully embodies the essential requirements of market economy", so even if it is not for the development of public interests, the legislative concept of property law must be implemented and implemented, so that both of them can be equally protected by law. The author believes that the China Revolution has won, but we must never forget the desperate participation and support of the disadvantaged groups in various revolutionary periods. Of course, it is impossible for the disadvantaged groups in the new era to adjust their property rights by "fighting local tyrants and dividing fields" in the old era, but only through national legal assistance. The state formulates laws and regulations and uses various channels to narrow the gap between the rich and the poor in order to build a well-off society in an all-round way. The author puts forward suggestions to mobilize developers to seriously study and practice Scientific Outlook on Development, and take care of people's livelihood and common prosperity as their own responsibility. The state should formulate a national policy. When bidding for state-owned land, developers should implement a contract system for the living conditions of the people in the development zone, and choose developers with credibility and strength in the society to be honorary "village officials" in the development zone. Huaxi Village in the south of the Yangtze River and San Xiao Village in the north of the Yangtze River are examples of building a beautiful home together. In order to build a harmonious society and a well-off society in an all-round way, local governments and developers must carry forward the "seed" spirit during the revolutionary war, regard the backward old city and its people as "land" and sow a beautiful home in the new period in a down-to-earth manner. I expect more industrial cloning in China. These factors should be taken into account when the country expropriates and sells land. Relying on the harmonious development of "village officials" and villagers, we can complete the transformation of the old city, build a well-off society together, develop together in a planned way and get rich together. The author believes that this should be the legislative intention of the property law. In this way, local governments will only increase their fiscal revenue and achievements, on the contrary, they can alleviate the pressure of major government leaders in real estate development and get rid of the disputes over expropriation (demolition).
Fourth, according to the provisions of Article 12 1 of the Property Law, the usufructuary right is extinguished, and the usufructuary right holder, that is, the lessee, has the right to obtain corresponding compensation in accordance with the provisions of Article 42 of the Property Law.
According to Article 12 1 of the Property Law, if the usufructuary right is expropriated or not, and the government authorities order the developer to eliminate it by violent means, thus affecting the exercise of the usufructuary right, the usufructuary right holder has the right to obtain corresponding compensation in accordance with the provisions of Article 42 of the Property Law. If this content is written into the Regulations on Expropriation and Compensation, most usufructuary rights holders in China, that is, the original lessees, especially the original lessees after the elimination of usufructuary rights, can get compensation in accordance with the provisions of the Property Law, which embodies the ownership and utility of things and is the basis for building a well-off society in an all-round way.
Fifth, the compensation basis should be set for the lessee who directly manages the state-owned public housing.
In the "Draft for Comment", there is no compensation basis for the lessee who directly manages state-owned public houses. Before the implementation of the Property Law, a city in Jiangsu Province made a distinction between "public residential houses to be demolished and leased" and "state-owned non-residential houses to be demolished and leased" in the provisions of Article 34 of the original Administrative Measures for Urban House Demolition. According to the case of Wang Shengling, a court in quanshan district, Xuzhou City, published by China Court Network in March 2008, even before the implementation of the Property Law, the public house rented by Wang Shengling was forcibly demolished by the developer. In this case, according to the nature of public housing, it is defined as a new type of usufructuary right (Wang Shengling received 82% compensation according to the market price of the housing). In the new regulations, special compensation methods should be formulated for directly managed public houses.
Article 29 of the new intransitive verb rule conflicts with Article 12 1 of the Property Law.
According to the original "Demolition Regulations", since the announcement of demolition, both the lessor and the lessee have terminated the lease relationship, and both of them belong to the object of demolition compensation and resettlement, and their relationship is completely irrelevant. Judging from the understanding and application of the Supreme Court's Property Law, it is clearly stipulated that the above two objects are different subjects of property rights: one is ownership and the other is usufructuary right. Therefore, the above provisions cannot be based on the provisions of the original regulations, and new compensation and resettlement measures should be formulated according to the provisions of the Property Law. The author believes that the new regulations should distinguish between two objects when modifying the above terms. One is the object stipulated in Article 1 17 of the Property Law, which belongs to the agreed lease relationship. The lease contract can be re-signed with the lessee through property right replacement, which is the continuation of the lease relationship. If the lessee's relocation causes losses, the expropriated person shall compensate; The other is the object stipulated in Article 12 1 of the Property Law. If the lessee is the house rented by the usufructuary right holder, and the developer, the object whose usufructuary right has been forcibly eliminated, is illegally removed and forced to move, which affects the exercise of his usufructuary right, the usufructuary right holder (the original lessee) has the right to obtain the corresponding ownership compensation according to the provisions of Article 42 of the Property Law. The above two situations belong to the category of property law, especially the object stipulated in article 12 1, which should be reflected in the new regulations to protect the legitimate rights and interests of usufructuary rights holders according to law.
7. Paragraph 4 of Article 40 of the new regulations stipulates that the old regulations will be borrowed in the name of "not for the needs of public interests", and the old business of "violent demolition" will be resumed when the time is ripe.
According to the provisions of Article 19 of the Exposure Draft, if a dilapidated building is converted into residential construction, the expropriated person has the right to move back. But the problem is that Article 40 (4) of the new regulations stipulates that the above provisions on expropriation and compensation can be applied to "demolition activities" unless it is necessary for public interests, which is a trap. The author suggests amending this clause to read: "If the relocated people who meet the relocation conditions are unwilling to move, they should refer to the above-mentioned expropriation regulations according to different situations." After removing the "demolition activity", it is an equal buying and selling relationship between civil subjects, and both parties can have room for negotiation. If the fourth paragraph of Article 40 of the new regulations is established, when the demolition activity is successful, the developer can follow the provisions of Article 27 of the new regulations: violent and barbaric demolition is revived, the expropriated person is driven from the golden land to the hinterland, and the expropriated person is forcibly relocated to low-rent housing or affordable housing, and the intercepted house is sold at a high price, making huge profits and repeating the shady business of officials and businessmen. In this way, it is bound to reduce the living environment and quality of life of residents in the Central Plains during the renovation of dilapidated houses. Vulnerable groups will lose the right to protect their right to compensation for demolition by using the third paragraph of Article 42 of the Property Law.
Eight, the relationship between parental inheritance and compensation.
The new regulations have no specific provisions on the determination of the ownership of the expropriated person, and the houses inherited by parents have been treated as shares. In the original demolition activities, the contradiction is also very sharp. If there are parents' wills (including notarized wills) and the registration certificate of the housing management department, the developer and the demolition office construction bureau will only recognize one household, and will not recognize the ownership according to the share. Ordinary people have no choice but to go to court, and the court only supports the demolition authorities and developers, not the ordinary people. The author suggests that in the new regulations, according to Article 13 of the Constitution, Article 78 of the General Principles of the Civil Law and Article 94 of the Property Law, the provisions of "co-owners by shares" should be clarified, so that people can get out of the judicial swamp.
Ninth, we can't level everyone's house.
Here's another question. The expropriated person has a house in the demolition area (even if it is not in the same plot), so he can't get compensation in the same place, which is not in line with the legislative principle of the property law. According to the third paragraph of Article 42 of the Property Law: "If a personal residence is expropriated, the living conditions of the expropriated person should also be guaranteed", which only involves "expropriation of personal residence", and compensation must be implemented according to the minimum standard housing area stipulated by the current policy of the expropriated person in this plot. It is a trap set by the infringer to reduce or deprive the expropriated person of his right to compensation because he has a house elsewhere. The expropriated person has a house in the local area. What if there are 9 other houses within the local demolition scope? Are the other 9 houses expropriated gradually owned by the expropriated person or the developer in the phased expropriation and demolition? This involves such a question, is the house built by the developer a sales house or a joint house? This is an infringement trap left by the original demolition regulations, which does not conform to the legislative principles of the property law and is an encroachment on the legitimate property of the expropriated person. According to the relevant provisions of the Constitution and the Property Law, the new regulations should delete the above-mentioned infringement clauses to ensure the stability of people's livelihood from the entity.
X the provisions of article 23 conflict with those of article 1 1 and article 245 of the property law.
The houses stipulated in Article 23 of the new "Regulations" are illegal buildings, and shall be demolished according to law without compensation. At the same time, it shows that the house has been built and used before the expropriation. If the competent department has not made a decision on demolition, it shall be factual possession according to the provisions of Article 245th of the Property Law. According to Article 1 1 of the Exposure Draft, after the scope of house expropriation is announced, the following activities shall not be carried out within the scope of house expropriation: Article 1 clearly determines the construction, expansion and reconstruction of houses. According to this regulation, no new or expanded houses are allowed after the announcement. Then, the above houses were formed before the announcement, indicating that they are not newly built or expanded houses and should be compensated. According to Article 245th of the Property Law, the occupier has actually occupied the above-mentioned house. Whether he has the right to possess or not, the possessor has the right to request protection according to law: he has the right to request the return of the original; Have the right to ask for the removal of obstacles or dangers; Have the right to claim damages. The author believes that the above-mentioned houses are not demolished according to law and should be compensated according to law.
XI。 Legal responsibility part
For those who rob illegally and forcibly demolish by force, in accordance with the relevant provisions of the Criminal Law, the responsible person shall be investigated for the crime of destroying public and private property, and in accordance with the punishment principle of national laws and regulations, the losses caused by the above-mentioned illegal robbery and violent demolition of the expropriated person's property shall be compensated, and the economic punishment shall be heavier! The compensation standard for illegal demolition shall not be less than 50% of the compensation beyond the compensation standard; Violent and brutal demolitions shall not be less than 75% of the compensation beyond the compensation standard; Violence plus public security police, joint defense security or fire brigade. Anyone who participates in the brutal forced demolition will be compensated at 100% for the part exceeding the normal compensation standard. Power failure, water cut, heating stop and other illegal threats to the demolition, the amount of compensation shall not be less than 5% of the compensation. Only in this way can the developers behind the scenes and the offenders who support the developers after being bought by the developers learn from the compensation. The principle of compensation is: whoever benefits will pay compensation, and support those who violate the law to bear joint and several liability.
12. The provisions of Article 41 shall come into force on.
In accordance with legislative practice, the scope and object of application of these regulations should be explained. Before the implementation of the new regulations, the law does not retroactively deal with the objects already dealt with. For the outstanding problems of violent demolitions that have not been handled, penalties should be stipulated in the new regulations, and the local government should be ordered to deal with the above outstanding problems within a time limit as the basis for performance appraisal, which is also the best way to reduce the masses' demands for Beijing. However, there is no provision in the draft for comments, which will bring difficulties to the later operation. If it is not handled properly, it may trigger a new round of petition climax.
The publisher quoted Jed.