【作者】 张峰；

【导师】 沈军；

【作者基本信息】 苏州大学 ， 法律， 2009， 硕士

【摘要】 伴随着经济社会发展和城市化进程之加速,现实中大量存在之违章建筑层出不穷,违章建筑之归属与利用已日益成为人们关注之社会问题。人民法院为了缓解“执行难”,在民事执行中将执行措施指向违章建筑之情况越来越多。违章建筑具有“先天性”违法缺陷,能否变价?如何变价?在理论界以及司法实践中众说纷纭,莫衷一是。本文区分违章建筑仅违反公法、既违反公法又违反私法、仅违反私法之三种情形,探讨了违章建筑之所有权问题,倾向不动产所有权说(但该所有权受法律之限制),并以此为理论基础,探讨了违章建筑之可执行性、查封之特殊规则、执行之协调机制与性质转化之规则。进而,区分“程序违建”与“实质违建”,重点阐述了“实质违建”的强制拍卖、强制变卖、以物抵债、交付占有、租金提取、拆迁补偿、强制管理等执行实务问题,提出强制管理为违章建筑执行变价之首选方式。更多还原

【Abstract】 Along with economic and social development and urbanization of the acceleration, in reality, the existence of a large number of illegal buildings after another, the ownership and use of illegal buildings have increasingly become concerned about the social problems. People’s Court in order to alleviate the "difficulty in enforcement" in the civilian implementation of the zoning and building regulations will implement measures to point to the increasing number of cases. Illegal buildings with "congenital" illegal defects, can change prices? How do I change prices? In theoretical circles as well as the judicial practice, say, today.This distinction between illegal buildings that violate only public law, both violations of public law and contrary to private law, only a breach of private law of the three cases, discussed the issue of ownership of the illegal buildings,Real estate ownership tend to say (but subject to the law of the ownership restrictions), and use it as the theoretical basis to discuss the illegal construction of the enforceability, attachment of the special rules, implementation of the coordination mechanisms and the nature of the transformation rules. Furthermore, the distinction between "program illegally built" and "real illegally built," focuses on the "real illegally built" and forced sale, forced sale, to material bonded delivery of possession, rent extraction, relocation compensation, mandatory management, implementation of the practical issues proposed mandatory implementation of change management as the illegal construction of the preferred price of way.更多还原