The exposure draft stipulates that if the expropriated person and interested parties related to the house expropriation decision are dissatisfied with the compensation decision, they may apply for administrative reconsideration or bring an administrative lawsuit to the people's court according to law; During the period of administrative reconsideration and administrative litigation, the execution of the compensation decision shall not be stopped; If it fails to apply for administrative reconsideration, bring an administrative lawsuit to the people's court or fail to perform within the time limit, the local people's government at or above the county level that made the decision on house expropriation will forcibly move, or apply to the people's court for compulsory relocation according to law.
At the same time, the exposure draft stipulates that before the implementation of compulsory demolition, the house expropriation department shall, in accordance with the compensation decision, give monetary compensation to the expropriated person or provide property rights exchange houses and revolving houses.
"If the expropriation and compensation of houses by government departments are legal, but some people are unwilling to move away, public interests will be difficult to achieve. Wang Xixin, a professor at Peking University Law School, believes that the existence of "coercive measures" is reasonable at this time, because there are coercive problems in the implementation of all laws. But at the same time, coercion is a means set by law and must conform to the basic principles of the rule of law. It cannot be equated with violence and some barbaric ways.
The housing compensation levied by the government shall not be lower than the transaction price of the similar real estate market.
Xinhua News Agency, Beijing 65438+1October 28th (Reporter Cui Qingxin, Chen Fei) On the 29th, the Regulations on Expropriation and Compensation of Houses on State-owned Land (Draft for Comment) was officially open to the public for comments, in which a special chapter was made on the government's expropriation of housing compensation. The real estate market evaluation price of the house to be expropriated shall not be lower than the market transaction price of similar real estate on the effective date of the house expropriation decision.
The exposure draft stipulates six main issues of compensation collection:
First, the compensation method can be monetary compensation, housing property rights exchange, or a combination of monetary compensation and housing property rights exchange. The expropriated person can choose the compensation method.
Second, the amount of monetary compensation is determined by the real estate price assessment agency based on the real estate market assessment price, but it shall not be lower than the market transaction price of similar real estate on the effective date of the house expropriation decision. The real estate price appraisal institution shall be determined by the expropriated person by voting or drawing lots.
Third, the house expropriation department is responsible for organizing the investigation and registration of the expropriated houses, drawing up the compensation plan, soliciting the opinions of the expropriated people, and issuing an announcement after being revised and improved and reported to the relevant government for approval; Among them, the compensation scheme for the renovation of dilapidated houses should also be approved with the consent of more than two-thirds of the expropriated people.
Fourth, the house expropriation department concluded a compensation agreement with the expropriated person according to the compensation plan; Among them, the compensation agreement for renovation of dilapidated buildings can only take effect if the signing rate reaches more than two-thirds within the signing period.
Fifth, after the conclusion of the compensation agreement, if one party fails to perform the compensation agreement, the other party may bring a lawsuit to the people's court according to law.
Sixth, the government should provide suitable housing for expropriated individuals and affordable housing for those who meet the housing security conditions.
It is forbidden to cut off water, electricity and gas when moving.
Xinhua News Agency, Beijing 65438+128 October (Reporter Cui Qingxin, Chen Fei) On the 29th, the Regulations on Expropriation and Compensation of Houses on State-owned Land (Draft for Comment), which was formally solicited by the public, explicitly prohibited such practices as interruption of water, electricity and gas in the process of house expropriation.
The exposure draft stipulates that if the house expropriation department entrusts the relevant units to engage in the specific work of expropriation compensation and resettlement, it should strengthen the supervision of the entrusted units and bear corresponding legal responsibilities for their expropriation compensation and resettlement. The house expropriation department and its entrusted units shall not take the way of interrupting water supply, heating, gas supply and power supply to implement demolition. No unit or individual may move by violence, coercion or other illegal means.
At the same time, the exposure draft stipulates that in violation of the provisions of these regulations, if the house expropriation department and its entrusted units implement expropriation compensation and resettlement by violence, coercion or other illegal means, the directly responsible person in charge and other directly responsible personnel shall be investigated for criminal responsibility according to law; If it does not constitute a crime, it shall be punished according to law.
More than 90% of the expropriated people agree to rebuild dangerous houses.
Xinhua News Agency, Beijing 65438+1October 28th (Reporter Cui Qingxin, Chen Fei) On the 29th, the Regulations on Expropriation and Compensation of Houses on State-owned Land (Draft for Comment), which was formally solicited by the public, put forward special requirements for those who need to expropriate houses due to renovation of dilapidated houses. If 90% of the expropriated people agree, no decision on house expropriation shall be made.
The exposure draft stipulates that if houses need to be expropriated due to the renovation of dilapidated houses, the local people's governments at or above the county level shall solicit the opinions of the expropriated people on the basis of organizing relevant departments to demonstrate. If more than 90% of the expropriated people agree to carry out the renovation of dilapidated houses, the local people's governments at or above the county level may make a decision on house expropriation; Without the consent of 90% of the expropriated people, no decision on house expropriation shall be made. The local people's governments at or above the county level shall promptly announce the situation of soliciting opinions.
As for the compensation for the houses that need to be expropriated due to the renovation of dilapidated houses, the exposure draft also specifically proposes that such compensation schemes should obtain the consent of more than two-thirds of the expropriated people before being reported to the local people's governments at or above the county level for approval.
Pay attention to procedural justice: public opinions should be widely listened to and publicized in house expropriation.
Xinhua News Agency, Beijing 65438+128 October (Reporter Chen Fei, Cui Qingxin) On the 29th, the Regulations on Expropriation and Compensation of Houses on State-owned Land (Draft for Comment), which was officially open to the public, paid attention to the openness and fairness of the expropriation procedure, and demanded that public opinions be widely listened to and made public.
The exposure draft stipulates that the local people's governments at or above the county level should organize relevant departments to demonstrate, announce the purpose, scope and implementation time of house expropriation, and solicit the opinions of the expropriated people, the public and experts through argumentation meetings, hearings or other means. The announcement time shall not be less than 30 days; However, if the scope of house expropriation is large, the announcement time shall not be less than 60 days. If the published matters involve state secrets, they shall abide by the provisions of relevant laws and administrative regulations on confidentiality. The local people's governments at or above the county level shall promptly announce the adoption and rejection of the opinions of the expropriated person, the public and experts, and the reasons.
The exposure draft pointed out that after soliciting the opinions of the expropriated person, the public and experts, if there is no major dispute, the local people's government at or above the county level will make a decision on house expropriation; If there is a major dispute, the local people's government at or above the county level shall make a decision on house expropriation after reporting to the people's government at the next higher level for a ruling.
The exposure draft emphasizes that if the expropriated person or interested party concerned with the house expropriation decision refuses to accept the house expropriation decision made by the local people's government at or above the county level, they may apply for administrative reconsideration or bring an administrative lawsuit to the people's court according to law.
Wang Xixin, a professor at Peking University Law School, believes that procedural justice is a basic principle emphasized in this exposure draft. In the process of expropriation, the combination of expert argumentation, public participation and government decision-making was fully considered, which broke the monopoly of the original local government on expropriation decision-making Moreover, it also introduces the supervision of the superior to the subordinate within the administrative organ and the external supervision of the court to the administrative process. All these are of progressive significance.
Seven "public interests" require the government to expropriate houses.
Xinhua News Agency, Beijing 65438+128 October (Reporter Cui Qingxin, Chen Fei) The Regulations on Expropriation and Compensation of Houses on State-owned Land (Draft for Comment), which officially solicited opinions from the public on the 29th, clearly stipulates that the government can expropriate houses only if it meets the needs of seven kinds of "public interests".
According to the provisions of the Property Law, the exposure draft stipulates that the expropriation of houses of units and individuals on state-owned land due to the needs of public interests and compensation for the owners of expropriated houses shall be governed by these Regulations, and the "needs of public interests" has been defined.
According to the exposure draft, "the need of public interest" includes seven situations: the need of national defense facilities construction; The needs of energy, transportation, water conservancy and other public utilities supported by the state and included in the plan; The needs of public utilities such as science and technology, education, culture, health, sports, environmental and resource protection, cultural relics protection, social welfare, and municipal utilities that are supported by the state and included in the planning; In order to improve the living conditions of low-income families with housing difficulties, the demand for low-rent housing and affordable housing construction organized and implemented by the government; In order to improve the living conditions of urban residents, the needs of the renovation of dilapidated houses organized and implemented by the government; The needs of the construction of office buildings for state organs; The needs of laws, administrative regulations and other public interests stipulated by the State Council.
If it is not for the public interest, the demolition should be voluntary and fair.
Xinhua News Agency, Beijing 65438+1October 28th (Reporter Chen Fei, Cui Qingxin) The Regulations on Expropriation and Compensation of Houses on State-owned Land (Draft for Comment), which officially solicited opinions from the public on the 29th, also made clear provisions on the issue of demolition not required by public interests, and demanded to adhere to the principles of voluntariness and fairness.
According to the provisions of the exposure draft, the demolition of houses of units and individuals on state-owned land due to construction activities shall conform to the overall urban and rural planning and land use planning, and go through relevant examination and approval procedures according to law. The construction unit shall prepare a specific implementation plan, report it to the house expropriation department for approval, and conclude a demolition compensation agreement with the house owner in accordance with the principle of voluntariness and fairness.
The exposure draft specifically pointed out that the provisions of the Regulations on Expropriation and Compensation of Houses on State-owned Land (Exposure Draft) on monetary compensation, exchange of house property rights and the contents of compensation agreements are applicable to demolition activities that are not in line with social and public interests.
The exposure draft also emphasizes that the construction unit and the unit entrusted to carry out demolition shall not interrupt water supply, heat supply, gas supply and power supply, and shall not carry out demolition by violence, coercion or other illegal means. The local people's governments at or above the county level shall strengthen the supervision and management of the demolition activities.
From "Dismantling" to "Moving"
-Facing the contradiction of "demolition", China Municipal Government issued new regulations to solicit public opinions.
Xinhua News Agency, Beijing 65438+1October 28th (Reporter Chen Fei, Cui Qingxin) Violent demolition, extreme confrontation, and demolition to get rich ... In view of various problems in the process of "demolition", after more than two years of investigation and research, the Legislative Affairs Office of the State Council and the Ministry of Housing and Urban-Rural Development have formulated the Regulations on Expropriation and Compensation of Houses on State-owned Land (Draft for Comment), which is intended to replace the original "City".
Faced with the contradiction of "demolition", new regulations came into being.
On June 3, 2009, Tang Fuzhen, a villager from Jinhua Village, Tianhui Town, jinniu district, Chengdu, set himself on fire when her ex-husband Hu Changming's house was forcibly demolished, but he died unfortunately on June 5, 438+065438+1October 29 due to ineffective rescue.
Subsequently, on February 7th, 65438, five professors from Peking University wrote to the National People's Congress Standing Committee (NPCSC), proposing to amend the Regulations on the Administration of Urban House Demolition.
After these incidents were reported by the media, people once again paid extensive attention to and discussed the revision of demolition and demolition regulations.
On June 5438+February 65438+June 2009, the Legislative Affairs Office of the State Council held an expert seminar and listened to the opinions of experts in civil law and administrative law, including five professors from Peking University, on the revision of the Regulations on the Administration of Urban House Demolition. 20 10 65438+ 10 On October 20th, the State Council Legislative Affairs Office organized an expert discussion again to listen to experts' opinions.
Wang Xixin, a professor at Peking University Law School, attended the two meetings. He said: "At these two seminars, I felt that the whole discussion was relatively open, full and in-depth. Comparing the manuscripts formed by the two seminars, I feel that experts' participation in the discussion is not a formality, and all kinds of opinions have been fully absorbed and digested. "
The Legislative Affairs Office of the State Council and the Ministry of Housing and Urban-Rural Development, on the basis of soliciting opinions from various sectors for many times, formed the Regulations on Expropriation and Compensation of Houses on State-owned Land (Draft for Comment) after repeated research and revision, and publicly solicited public opinions on the 29th.
Wang Cailiang, director of Beijing Cai Liang Law Firm and adjunct professor of Beijing University of Aeronautics and Astronautics Law School, told the reporter that it is undoubtedly of great positive significance for the State Council Legislative Affairs Office to open a draft for comments in the case of increasing demolition contradictions.
"House expropriation involves the interests of thousands of households. Public solicitation of opinions reflects legislative democracy, which can effectively curb the negative impact of closed-door legislation by interest groups, help formulate a law that conforms to the Constitution and the property law, and truly safeguard the interests of the public and protect the legitimate rights and interests of the expropriated people." Wang Cailiang said.
From "Demolition" to "Movement": Reflecting the progress of the concept of rule of law
The official draft for comment has changed greatly in name and content. According to the provisions of the exposure draft, the government can only expropriate houses for seven "public interests"; With the consent of more than 90% of the expropriated people, the dilapidated buildings can be rebuilt. ...
"The name of this exposure draft is the Regulations on Expropriation and Compensation of Houses on State-owned Land. Although it is only a name, with the change of the name, its internal system has also undergone great changes. " In an interview with reporters, Wang Xixin spoke highly of the exposure draft.
Wang Xixin believes that the management regulations of urban house demolition emphasize "management", and the new name reflects the respect and protection of citizens' private property rights from one-way management. Moreover, the concept of "demolition" was abandoned and replaced by "relocation" in the draft for comments, and the change from "demolition" to "moving" also reflected the progress of a concept of rule of law.
"The concept of demolition is actually a very inappropriate concept in law, because demolition is just an act. Moreover, this concept has brought many problems in the past decade and caused a bad social and psychological hint. " Wang Xixin said.
Wang Xixin believes that the exposure draft has made great progress not only in concept, but also in system regulations.
"At present, the demolition caused by commercial interests accounts for the majority, but they are all cloaked in public interests. It can be seen from the provisions of the draft for comment that in the future, the government's expropriation and compensation for housing will only apply to the needs of public interests, and what is public interest has been defined more realistically and reasonably. " Wang Xixin said.
In addition, in the collection procedure, the exposure draft also pays attention to procedural justice. Through the mechanism of openness as much as possible, the combination of expert advice, public participation and government decision-making, as well as internal hierarchical review and judicial supervision, the procedures and decisions are more democratic and reasonable, and the rights of the parties are better protected and relieved.
Expropriation and compensation: as fair and reasonable as possible.
Not long ago, Guiyang police reported the handling result of a mass incident of illegal road blocking caused by violent and barbaric demolition, which was of a bad nature. Among them, 20 suspects who were employed by developers and participated in brutal and violent demolition were criminally detained on suspicion of intentionally damaging property.
With the acceleration of urbanization, it is difficult to reach an agreement on demolition compensation, and violent and barbaric demolition incidents occur from time to time. Individual developers refused to demolish the house for the so-called "nail house", and resorted to intimidation, coercion, water and electricity cuts, and even illegal restrictions on personal freedom, desperate to demolish the house first.
Wang Xixin said that a large number of brutal, violent and coercive measures are illegal in the process of demolition, and even in the Regulations on the Administration of Urban House Demolition, the demolition people are not given such power.
Experts believe that in fact, most people are not opposed to demolition. The key is that the compensation is not in place or the standard is too low.
In view of the prominent contradictions such as compensation and forced demolition, the exposure draft specifically stipulates that the amount of monetary compensation shall not be lower than the market transaction price of similar real estate on the effective date of the house expropriation decision; The house expropriation department and its entrusted units shall not take the way of interrupting water supply, heating, gas supply and power supply to implement demolition. No unit or individual may move by violence, coercion or other illegal means.
"The expropriation and compensation of houses is the core issue in the original demolition system. Once it is clear whether the purpose of demolition is for the public interest and whether the compensation is as fair and reasonable as possible, it can be said that the problems encountered in the compensation for house expropriation can be solved. " Wang Xixin said.