我国城镇房屋拆迁补偿法律制度研究

【作者】 张荣梅；

【导师】 林刚；

【作者基本信息】 西南政法大学 ， 民商法， 2005， 硕士

【摘要】 房屋拆迁是近些年来一个非常热门的话题,因为它涉及到人们的切身利益,所以受到社会各界的普遍关注,特别是拆迁补偿问题更是人们讨论的焦点。对于补偿问题主要有两种观点:有的人认为,补偿低了,没能切实保护公民的合法财产权;有的人则认为,补偿高了,增加了拆迁的成本,为城市的更新发展带来不良影响。面对热火朝天的争论我们能否冷静地思考,房屋拆迁究竟应该对被拆迁人的哪些损失进行补偿?为什么要补偿?补偿的标准是什么?什么样的补偿标准最有利于中国现在拆迁问题的解决,最适合中国现在的国情?本文将试图从下面几个方面的分析探讨中解决上述的问题。 人类经济发展、工业技术的进步不断推动人类走向文明,一方面人们的私有合法财产得到了法律更为严格的保护,另一方面人们追求更加舒适、便捷的生活也促使人们开始思考如何合理地利用土地,以及怎样进行科学的城镇功能区划。这样一来,房屋拆迁就不可避免。从语义上讲,房屋拆迁是政府公权力的行使方式,它是国家征用权的一种体现,这种征用权行使的唯一前提就是社会公共利益的目的性。因而城镇房屋拆迁就其本意而言仅仅应是基于社会公共利益的目的,而不包括纯商业性质的,因此无所谓商业性的拆迁和社会公共利益目的性的拆迁。 本文首先从人类房屋拆迁的背景入手分析房屋拆迁法律的基本理论。人类任何一项具体的法律制度的产生都是基于社会经济所需要的客观基础,房屋拆迁法律制度亦不例外。房屋拆迁法律制度的发展不是一个简单原因引起的而是基于许多方面的综合因素,包括人类工业化和城镇化的发展进程的必然要求,人们对城市建设规划的重新思考与定位,土地资源利用和人类发展的重要性关系,而且更基于个人权利得到普遍重视、私有财产得到了更为严格的法律保护,以及人们对美好居住和生存环境的追求等方面。正是基于以上种种原因,城市房屋拆迁变得不可避免,这种不可避免又与房屋权利人的权利保护产生了矛盾和冲突,为解决冲突,便产生了房屋拆迁法律制度。在这一部分,作者还分析了我国的房屋拆迁制度。我国的房屋拆迁制度真正产生于上世纪90年代的大规模城市扩张和旧城改造,我们在看到城镇面貌日新月益的同时又看到了有的人因为拆迁而自焚,看到有的人因为拆迁而对簿公堂,或者是因拆迁而走上了漫漫上访路……更多还原

【Abstract】 Closely related to people’s benefits, housing demolition has become a hot topic and caused general concern. Compensation for demolition is the focus of the discussions and there are mainly two viewpoints on it: 1) some people believe that citizens’ legal property rights are not protected if the compensation is low; 2) others argue that high compensation will increase the demolition cost and impede cities’ development. It is necessary for us to consider the following issues: the scope of losses to be compensated, the causes for compensation, and the standards for compensation. Especially, what standards are most helpful to current China? This article discusses these issues as follows.With the development of economy, industry and civilization, people’s legal private properties are strictly protected by law. However, the effort to make more comfortable and convenient life drives people to consider issues like how to use land rationally, how to scientifically zoning the cities. As a result, urban housing demolition is inevitable. Literally, housing demolition is a method for government to exert its public right. The sole prerequisite for the exertion is the purpose of social public benefit. Consequently, urban housing demolition should be solely based on purposes of social public benefit, excluding purely commercial ones. It is unnecessary to distinguish commercial demolition and for social public benefitIn the first section, this article analyses rationale of housing demolition law by studying the background of demolition. As other law systems, housing demolition law is based on objective base demanded by social economy. The development of house demolition law is the result of comprehensive factors such as the demand of industry and urbanization, the reconsideration of cities’ zoning, the relation between land use and man’s development, general attention on people’s individual rights, restrict legal protection on private properties, and pursuit for good residence and environment. Therefore, housing demolition is inevitable. And the inevitability conflicts with the protection on the right owners of houses. Housing demolition law evolves to solve the conflict. In this section, the author also analyses China’s housing demolition law. China’s housing demolition law emerges in the large-scale urbanization in 1990s. While we cherish the great changes of cities, wehave witnessed that, because of demolition, some people bum themselves to death due to demolition, some go to court, others appeal to higher authorities.. .To solve these issues, the author analyses the nature of demolition. The author holds that demolition should not be simply classified as civil act or administrative act It should be treated as a complicated social activity involving multi-benefits and all factors should be taken into accountIn the second section, this article discusses the substantive and procedural elements of housing demolition. As we all know, the sole substantive element of housing demolition is the purpose of social public benefit Countries and regions have varied interpretations on social public benefit Unfortunately, it has not been specific? ]Iy defined in china. This is an important reason for abuses of "social public benefit" in China’s demolition process. By consulting other countries’ definitions on the term, the author defines the intension and extension of public benefit in China. That is, relevant laws in China should define "social public benefit" in two aspects: l)the nature of public use; 2)the use of public benefit Furthenaore, it should be stipulated that demolition shall not be done in absence of social puolic benefit reasons. Next, the author levels social public benefit by level of validity. Effects on housing demolition by public benefit of each level are also discussed. The author stresses some controversial issues in practice. Take old city reform for example. Usually, it is run by government and developed by developers. The author explores on how to classify this kind of demolition, whether it has the purpose of social public benefit Procedural elements are many in the field of housing demolition, for instance, application of demolition license, contract on demolition compensation and settlement Among them, the author focus attention on two points: l)hearing procedure; 2)the procedure of demolition license application - the conclusion of the contract on demolition compensation and settlement between the demolisher and the demolished.The third section focuses on the compensation for demolition. The author studies the compensation bases for housing, land use and settlement compensation right, defines the legal standards for housing demolition compensation, and attaches special attention on the protection on the disadvantageous in housing demolition compensation. The author consults the theory of economic subjects’social liability and brings forth the concept of preferential right Modem theories hold that in addition to maximizing profit, economic subjects is responsible to those who are benefit-related. Since the economic subject takes advantage of the society’s comprehensive conditions, it shall undertake reasonable responsibilities and liabilities for the society. As demolition is concerned, since the demolisher benefits from demolition, they should take certain responsibilities and liabilities for poor households in demolition. The responsibilities or liabilities are not performed in accordance of basic principles in civil law such as equality and mutual benefit, making compensation for equal value. They result from protection on poor households’ right to survival. Finally, the author discusses the allocation of responsibilities for compensation.The last section points out some issues for notice, namely, the realization of the right to demolition compensation, the interpretation and application of "concentration on person" in demolition, duties and effects of media on demolition, housing demolition system with Chinese characteristics.更多还原