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Analysis on the problems existing in house expropriation on state-owned land
With the rapid development of urban economy, high-rise buildings appear like mushrooms after rain, and behind the new buildings, buildings will be demolished, thus creating contradictions. The newly promulgated Regulations on Expropriation and Compensation of Houses on State-owned Land provides legal protection for the interests of expropriated people, but there are still some problems. This paper mainly puts forward some problems existing in the process of expropriation of houses on state-owned land, such as expropriation consciousness, expropriation announcement, expropriation evaluation, compensation and resettlement of expropriated people, and analyzes the reasons for these problems, and finally puts forward some suggestions.
1. Problems in house expropriation on state-owned land
(A) the consciousness of the expropriated person and the expropriated person
First of all, from the government's point of view, some governments have outdated concepts and misunderstandings in legal understanding. The purpose of house expropriation on state-owned land is to obtain the land use right of the expropriated house, re-plan and realize greater public interests. The realization of this goal is not to let the government speed up urban economic construction regardless of the actual situation. This unrealistic idea has two main manifestations in real life: first, the squares and roads built are extremely wide, the government administrative center is too large and demanding, and we will also see some luxurious administrative institutions exposed in the media. Second, blind implementation of policies and guidelines, excessive development and construction of commercial and residential buildings, high-grade, these problems will inevitably lead to the shortage of funds for housing expropriation and land expropriation. In this way, it is impossible to guarantee the compensation and resettlement of the expropriated people, which leads to the problem that some residents have no housing for a long time. Some local leaders don't think so. They think that this is an inevitable stage to realize the ego at the expense of the ego. The difficulties of a few expropriated people are temporary and should be subordinated to the overall situation of economic development. As we all know, the purpose of the government's economic development is to make people's lives better, but now many governments develop their economy at the expense of people's happy lives, which is incredible.
From the point of view of the expropriated person, the expropriated person's legal consciousness is not strong, and he can't resist the intimidation of the house expropriation implementation unit (hereinafter referred to as the expropriated person), and it is easy to submit. At present, collectors are almost all powerful real estate developers. They objectively comply with the requirements of the government to realize urban development planning and are inextricably linked with local governments. Therefore, the expropriated person relies on this advantage to force the expropriated person to sign the "overlord clause" with it. The expropriated person is afraid of the power of the expropriated person and often accepts it with a natural attitude. In fact, this will only increase the arrogance of the expropriated people.
(two) the announcement of the collection decision and compensation plan.
Article 11 of the newly promulgated Regulations on Expropriation and Compensation of Houses on State-owned Land (hereinafter referred to as the Regulations) stipulates that "the people's governments at the city and county levels shall promptly announce the solicitation of opinions and make amendments according to public opinions. If houses need to be expropriated due to the transformation of the old city, and most of the expropriated people think that the expropriation compensation scheme does not conform to the provisions of these regulations, the people's governments at the city and county levels shall organize a hearing attended by the expropriated people and public representatives, and modify the scheme according to the hearing. " Thirteenth stipulates that "the people's government at the city or county level shall make a public announcement in time after making a decision on house expropriation. The announcement shall specify the compensation plan, administrative reconsideration, administrative litigation rights and other matters. The people's governments at the city and county levels and the house expropriation departments shall do a good job in publicizing and explaining the house expropriation and compensation. " The purpose of the announcement of the expropriation decision is to let the expropriated person know about the relevant demolition matters and make full preparations. In reality, the expropriated people think that they can only understand the expropriation matters until they see the expropriation announcement, thus delaying the action of safeguarding rights. The expropriation management department thinks that the expropriation announcement has been issued, and there is evidence that the two sides are arguing, which is a disaster caused by the irregular form of the expropriation announcement. Then, the subject of the collection announcement is not unified, and the collection department also publishes it, and the collection implementation unit also publishes it. These are the causes of the problem.
(3) Evaluation in the process of collection
Whether the appraisal agency can be fair is the key factor that affects the interests of the expropriated person, but in reality it is difficult for the appraisal agency to be objective and fair, because the real estate appraisal itself is a complex activity, and it is an unavoidable fact that subjective factors play a great role, which we have to accept. In addition, the assessment agencies are inextricably linked with the collection management department, which makes it difficult for the assessment agencies to make accurate assessments. In addition, the responsibilities of appraisal institutions are not clear, and there is no corresponding accountability mechanism, which gives appraisal institutions and appraisers a great opportunity to violate the rules.
(4) Compensation and resettlement for the expropriated person.
For the whole collection process, the real problem that the expropriated person is most concerned about is how much compensation he can get. If the compensation can satisfy the expropriated person, there will not be many problems caused by the difficulty of expropriation and compulsory expropriation. The main problems existing in the compensation for expropriation of houses on state-owned land in China are as follows: First, only houses are supplemented, but the "land" representing the land use right enjoyed by the demolished people is not supplemented. Article 17 of the Regulations on Expropriation and Compensation of Houses on State-owned Land stipulates that the compensation given by the people's government at the city or county level who made the decision on house expropriation includes: compensation for the value of the house to be expropriated; Relocation compensation and temporary resettlement caused by the expropriation of houses; Compensation for losses caused by expropriation of houses. In China, I think the essence of house expropriation is to nationalize the land use right occupied by houses. The demolished people not only have the ownership of the house, but also have the right to use the land occupied by the house. When the house is demolished, it is not conducive to protecting the interests of the people who are demolished. Second, the compensation standard is relatively low. Judging from the constitution of our country, when the state expropriates citizens' property for the public interest, it can make "compensation" instead of fair compensation, which is the defect of legislation. Article 19 of the Regulations on Expropriation and Compensation of Houses on State-owned Land "The compensation for the value of houses to be expropriated shall not be lower than the market price of similar real estate houses on the date of announcement of the decision on house expropriation. The value of the house to be expropriated shall be assessed and determined by a real estate price assessment agency with corresponding qualifications in accordance with the house expropriation assessment method. " We can see that the house of the demolished person can only be compensated by "the market price similar to real estate". Everyone knows that the price of real estate has changed greatly, which makes the value of the house fluctuate greatly. There are also assessment agencies that are closely related to the real demolition units, and it is difficult to be fair. Third, people who have been demolished have almost no right to choose the compensation method for demolition. Although the regulations stipulate that people who have been demolished can choose monetary compensation and property rights exchange, in practice, most people who have been expropriated choose monetary compensation, not because there are many monetary compensation, but mostly because the geographical location and quality of the houses that have been exchanged for property rights are not good. In addition, many expropriated people did not acquire existing houses through property rights exchange, which made the expropriated people homeless.
Two, the reasons for the problems of housing expropriation on state-owned land
(A) the legislative guiding ideology is not perfect, paying more attention to efficiency and ignoring fairness.
Only when the legitimate rights and interests of citizens are clearly defined in the form of law can they really have legal rights. 200 1 Regulations on the Management of Urban House Demolition is the only regulation regulating and managing urban house demolition in China before the promulgation of Regulations on the Expropriation and Compensation of Houses on State-owned Land. Compared with the previous Regulations on the Management of Urban House Demolition, the current Regulations on the Expropriation and Compensation of Houses on State-owned Land has many improvements. However, its guiding ideology in legislation has not changed and there are still many problems. The current "Regulations" are more concerned with how to protect urban construction in legislation, and less about how to protect the legitimate rights and interests of people who have been demolished. Insufficient attention is paid to the efficiency of urban construction and social equity. To some extent, this legislative guiding ideology reflects the objective requirements of accelerating the urbanization process in China at this stage, but it runs counter to the social development trend of implementing the rule of law, protecting human rights, promoting social equity and developing political civilization advocated by China in building a modern society ruled by law, and conflicts with the socialist legal spirit of protecting human rights in China's current constitution. In addition, the "Regulations on the Management of Urban House Demolition" in some places still do not match the current "Regulations" and fail to keep pace with the times, which will inevitably lead to unreasonable and illegal phenomena in the process of demolition.
The scope of public interest is not clearly defined.
Article 2 of the new "Regulations" stipulates that "for the needs of public interests, the expropriation of houses of units and individuals on state-owned land shall give fair compensation to the owner of the expropriated house (hereinafter referred to as the expropriated person)." Then what is the public interest? Let's look at Article 8 of the Regulations. "In order to safeguard national security, promote national economic and social development and other public interests, in any of the following circumstances, if it is really necessary to expropriate houses, the people's government at the city or county level shall make a decision to expropriate houses: (1) the needs of national defense and diplomacy; (two) the needs of the government organization and implementation of energy, transportation, water conservancy and other infrastructure construction; (three) the needs of public utilities such as science and technology, education, culture, health, sports, environmental and resource protection, disaster prevention and mitigation, cultural relics protection, social welfare, and municipal utilities organized and implemented by the government; (four) the needs of the construction of affordable housing projects organized and implemented by the government; (five) the needs of the old city reconstruction organized and implemented by the government according to the relevant provisions of the Urban and Rural Planning Law; (VI) The needs of other public interests stipulated by laws and administrative regulations "From these aspects, we can see that the government's jurisdiction over us involves all aspects. At the same time, we should also think that the power of the government is so great and the definition of public interest is so broad in law, which often becomes an excuse for some local governments to make profits for themselves.
(3) The expropriated person is in a passive position in the process of house expropriation.
People who are expropriated are often at the bottom of society. Because of their social and economic weakness, they are at a disadvantage in the interest game of house expropriation, and they do not have loud voice and equal bargaining power, let alone pricing power. In recent years, vicious incidents such as barbaric demolition have occurred frequently, seriously affecting social stability, and the contradiction between the expropriated people and the local government has become increasingly acute, such as the Putuo Lane incident in Guiyang, the Zhu incident in Beijing, and the Zhang Jian incident in Liaoning. People with a little conscience are dissatisfied with the unfair treatment suffered by the expropriated people and sympathize with Zhang Jian's tragedy. What makes them even more indignant is that the expropriated people ignore the national laws and the illegal administration of the local government. Although a large number of laws and regulations in China stipulate that China citizens enjoy various rights, due to the large population, many people's rights have been replaced by people's representatives, and it is difficult for people to make their own voices, such as the right to know and the right to dissent. These are the reasons why the expropriated people have been violated in the process of expropriation.
(D) The assessment agencies are inextricably linked with the collection and management agencies.
All belong to the construction system, appraiser examination, practice and daily management, which are stipulated by the construction department. Although the appraisal agency is an independent intermediary agency in law, every link of its appraisal activities is carried out under the supervision and command of the local construction department. For example, as stipulated in Article 6 of the Guiding Opinions on Urban Housing Demolition and Valuation, the real estate management departments of cities and counties shall announce to the public a number of assessment agencies with high qualification level, strong comprehensive strength and good social reputation for the residents to choose. The selection of the short-listed demolition appraiser must be checked by the construction department, and the appraisal agency that does not listen to the command will not accept the company's business. Moreover, because there is no authoritative and neutral real estate price monitoring institution in China so far, it is difficult to form a mature real estate market reference price, and the reference standards formulated by the government are often based on data many years ago. In addition, for the sake of their own interests, the local government will restrict the evaluation method and scope when formulating the evaluation method, so that the factors beneficial to the expropriated person cannot enter the evaluation scope. The existence of these factors leads to the evaluation results of the house expropriation evaluation institutions on the value of the expropriated house are often unfavorable to the expropriated person.
(5) The compulsory collection procedure provides a strong backing for the demolition unit.
Why is the expropriated person's house still expropriated when the expropriated person and the expropriated person cannot reach an agreement on housing compensation? Won't the expropriated person use legal means? Article 28 of the new "Regulations" stipulates that "if the expropriated person does not apply for administrative reconsideration or bring an administrative lawsuit within the statutory time limit, and does not move within the time limit stipulated in the compensation decision, the people's government at the city or county level that made the decision on house expropriation shall apply to the people's court for compulsory execution according to law." Although the expropriated person can carry out administrative reconsideration and administrative litigation, in practice, some local governments have great power and have great influence on the results of administrative reconsideration and administrative litigation, so these two relief methods have little effect in practice. In addition, when the government finds that there is a phenomenon that is not conducive to urban development, it can regulate its behavior in the form of administrative decisions, and the demolished people can't confront the government with this compulsory expropriation right given by the government. Expropriators often take advantage of this to do whatever they want in the process of expropriation, which harms the interests of the expropriated person.
Thirdly, suggestions on perfecting the compensation system for housing expropriation on state-owned land in China.
(a) adhere to the protection of the legitimate rights and interests of the expropriated person as the legislative guiding ideology, and improve the legislation on the expropriation and compensation of houses on state-owned land.
For a long time, we have adhered to the principle of giving priority to efficiency and giving consideration to fairness. China's economy is developing continuously, but there are more and more problems. This is where we are improving, so we should focus on protecting the legitimate interests of the expropriated people in legislation and improve efficiency on the basis of fairness. The fundamental problem of housing expropriation compensation on state-owned land is essentially related to whether the local government has the right to dispose of the real estate legally owned by the expropriated person and how to dispose of the private real estate of the expropriated person. The disposal of non-state-owned property often involves the expropriation or requisition of such property, which is an extremely serious legal problem. So these must be determined in the form of law, not in the form of administrative regulations. We should have a perfect legal system to regulate the house expropriation activities on state-owned land, not in the form of administrative regulations. It is inappropriate and extremely serious to set the disposal method of the expropriated property in the form of administrative regulations. Therefore, it is necessary to formulate a "Law on Expropriation and Compensation of Houses on State-owned Land" that takes into account the efficiency of urban construction and social equity.
(2) Actively explore the scope of public interest and gradually realize the definition of public interest.
Professor Wang Liming believes that public interest is a framework concept similar to the concepts of honesty, credit, public order and good customs, which is highly abstract and general. The scope of public interest is very wide, and the concept of public interest is subjective in a certain sense. Therefore, it is very difficult to define the concept of public interest in the property law, and only hope to stipulate public interest through the property law. Therefore, the abstract expression of public interest in the constitution should still be maintained in the property law, and it is not necessary to define the connotation of public interest by positive definition and negative exclusion. However, the property law should prevent the abuse of public interests by stipulating some necessary procedures and systems. In the draft property law presided over by researcher Liang Huixing, the term "public interest" is defined by listing. Article 48 of the draft stipulates that the so-called public interests refer to public road traffic, public health, disaster prevention, scientific and cultural education, environmental protection, protection of cultural relics and scenic spots, protection of public relations water sources and water diversion and drainage areas, forest protection and other public interests stipulated by national laws. Expropriation is not suitable for commercial purposes. Inspired by experts, I think we should explore and practice the "public interest scope" in some developed places, try out the review and control mechanism, and introduce local legislation when conditions are ripe. When the public interest summarized and explored by local governments is proved to be "legitimate and reasonable", the public interest will be clearly defined in law. Therefore, it will take some time to clearly define the interests of the public, and we should not rush for success.
(3) Intensify publicity to ensure the public's right to know and dissent.
China is a socialist country under the people's democratic dictatorship, and the people are the masters of the country. Although the law stipulates that Chinese citizens have the right to know and the right to dissent, many places have not done a good job of publicity, so we still need to increase publicity to ensure the public's right to know. In the process of housing expropriation on state-owned land, more attention should be paid to it. For example, after the construction project is approved by legal procedures according to the plan, the relevant functional departments should convene the residents of the expropriated lots to explain the laws and regulations on demolition. After the collection management department makes a collection decision, it shall publish the collection content, collection scope and collection period in a standardized form. The government should do a good job in the demolition propaganda, let the masses, especially the expropriation households, know and understand the government expropriation work, and return the right to know to the masses. We should be good at listening to the opinions of the masses and communicating face to face with the expropriated people before making the decision-making plan for expropriation, and we can establish a hearing system, especially to listen to the opinions of the expropriated people. We should persuade and explain their different views patiently and carefully. After the collection decision scheme is formulated, the expropriated person has the right to state his opposition. For those who can't reach an agreement on compensation and resettlement, before implementing compulsory expropriation or applying to the people's court for compulsory expropriation according to law, we must strictly follow reasonable procedures, make a ruling according to law, and use compulsory expropriation measures with caution.
(D) Standardizing housing evaluation, fair and just demolition evaluation is an important guarantee to reduce the contradiction of expropriation.
Because the evaluation institution is inextricably linked with the collection institution, the evaluation institution is unfair in the evaluation process, so the evaluation institution should be served by a more professional institution, which should not be influenced by the collection institution, nor should it have an interest relationship with the expropriated person. Just like the challenge system in civil and criminal proceedings, the judge has no interest relationship with the case under trial, and only in this way can he make a fair judgment. Therefore, the principle of openness and transparency must be followed when determining the collection agency. From a legal point of view, when the provisions that the expropriation and evaluation institution is decided by the expropriated person's vote or by the parties to the expropriation and demolition are violated, the expropriated person will have reason to think that the evaluation result is unfair regardless of whether the evaluation result is fair or not. Therefore, the principle of openness and transparency must be followed when determining the evaluation agency. Without procedural justice, it is impossible to produce substantive justice. It is not enough to have an impartial institution; it must act in strict accordance with principles. China's newly formulated "Regulations" clearly stipulates that real estate price assessment agencies should conduct house expropriation assessment independently, objectively and fairly, and no unit or individual may interfere. This principle should run through the appraisal from beginning to end, and those who violate this principle should be strictly investigated for the legal responsibility of the appraisal institutions and staff. Secondly, the appraisal institution should adhere to the appraisal principle in the appraisal process: follow the statutory principle, and the appraisal should be based on the legal use and legal disposal of the appraisal object; Follow the highest and best use principle; Following the principle of substitution, it is required that the appraisal result shall not deviate significantly from the normal price of similar real estate under the same conditions; Following the principle of appraisal time point, it is required that the appraisal result should be the objective and reasonable price or value of the appraisal object at the appraisal time point. Only in this way can the interests of the demolished people be truly guaranteed.
(5) Standardize the compulsory expropriation, improve the compensation standard and improve the compensation and resettlement system.
In the future system of house expropriation and compensation and resettlement on state-owned land, the expropriated person can get fair and reasonable compensation, which is also an important way to solve the contradiction of expropriation. I think, first of all, the land use right occupied by the expropriated house should be included in the scope of compensation, so that the house and the land are correct. Secondly, we should improve the compensation standard. Now house prices are soaring, buying a house is more than120 thousand, or millions, tens of millions, or even hundreds of millions. No matter where you own a house, it is equivalent to having a place to shelter from the wind and rain. If the house is expropriated and there is not enough money, it is difficult for you to find a good place to live. Therefore, to improve the compensation standard, you should not only compensate its actual value, but also comprehensively consider various factors, such as location, environment, use and area. Thirdly, it is to protect the right of the expropriated person to choose the compensation and resettlement method. If the expropriated person chooses property rights replacement, the expropriation unit should ensure that the houses they provide for the expropriated person already exist and ensure the quality of the houses, that is to say, the expropriated person should be resettled before expropriation to reduce the occurrence of forced expropriation of houses. Finally, we should continue to improve China's urban residents' security system and do a good job in ensuring residents' living.
Conclusion: Urban development is inseparable from expropriation. Urban development can meet the living needs of residents and improve their living standards, but there are sacrifices when there is development. In the process of urban development, we should pay attention to the protection of the expropriated people, minimize their sacrifices, and truly realize the residents' living and working in peace.
Hope to adopt, thank you.