Compensation Problem In Land Expropriation

There is increasingly emerging the legal significance of the compensation system in the eminent domain largely due to the transformation of the takings' system. From the historical perspective, the eminent domain was established aimed to control governmental power whereby preventing private-owned property from undue intervention. In the modern society, however, the eminent domain has gradually turned into a vehicle by which to infringe private-owned property by governments. As a result, the resort to the public interest has been unable to curb the expansion of governmental power. Further, the public interest has been something based on which the relevant authorities gains unjust enrichment due to lack of an examination criteria towards public interests. The compensation appears more significant in the context of such background.Why does it need to compensate the expropriated property? The traditional scholar generally attempted to justify the just compensation in light of abstract justice of quality, which is although sounds rational but not quite persuasive as a result of the broad concepts. The functions of being capable of optimizing resource distribution, controlling government's abuse of power, and preventing the majority autarchy have been new implications of the compensation system in the modern society.In light of the statutes outside China, the so-called just compensation generally refers to the compensation made by reference to market value of the expropriated property. As the land in China is owned by collective and there lacks a open market, there developed a compensation system with Chinese features, namely, the compensation is made not based on the market value of the land nor the current value of the farm land, instead on the budget capability of the governments and the living level of the local farmers. As the compensation standards currently have severely prejudice the rights of the original owners of the land, it is necessary to rectify and improve the compensation standards.It is a unique phenomenon nowadays in China that the compensation for the confiscated farmland is made in various manners. The reasons of which are caused by the following factors: constraint of budget and finance, standard of low compensation in money and government-oriental compensation system. Various manners of compensation is indeed to some degree capable of relieving the living difficulties of the farmer with no lands to be resorted on for a living, and further relieving the finance burden of the governments. Nevertheless, the compensation system as such does not fundamentally address the puzzle of protection for property right, by contrast, the compensation mechanism such as "land in exchange for security" would enhance the administrative interference into private-owned property further due to the inherent defects which can not be overcome itself.The particularity of the land collective-ownership system results in a phenomenon where the compensated object can not be determined. Among the various reason of the phenomenon where the right to the land can not be determined in the rural place in China, the most fundamental one lies in the conflict between the express claim and the blur individual under the collective-ownership system as well as the conflict between the boundary of rights of individual and collective. Consequently, determination of the compensated object is actually to draw a express boundary line between individual and collective in the land collective-ownership system. The completion of drawing the boundary line accordingly needs the fundamental reformation of the collective-owned farmland system.The dilemma of the compensation system for eminent domain conclusively is an infringement of the rights of the original owners of property by the administrative compensation mechanism of highly bureaucracy. The key to addressing the issue depends on the re-definition of the right of the land and clearance of the relationship between power structure and private-owned property rather than on the implementation of measures such as raising the compensation standards by the governmental bodies themselves.