On The Civil Protection Of Litigant's Rights In House Dismantlement

From the 90s in the last century, the large-scaled city expansion and the reconstruction of the old cities developed in all the parts of our country. The big cities expand to the medium or small cities. It becomes inevitable for the house dismantlement. As the dismantlement movement becomes fierce, the deeper-level conflicts appear in the process of dismantlement. Especially in the recent years, the house dismantlement has become one of the areas which intrigue the conflicts and collisions most easily in our country. At present, the relevant matching laws and regulations concerning the house dismantlement in our country are not perfect. And in addition, the dismantlement administration mixes with the Civil Law. Some legal problems concerning the house dismantlement have disputes in the academic field. In the process of the house dismantlement, the out-of-order chaos often appears. Even the rude dismantlement happens which is not according to the law. It infringes the rights of the dismantled and the dismantlement interest man. So on the basis of analyzing the relevant legal problems involved in the commercial dismantlement, from the viewpoint of the Civil Law, this paper carries out the primary discussion and study on the protection of the dismantled and the dismantlement interest man from two aspects of the Contract Law and the Infringement Law.This paper is divided into four parts:The first part is the definition of litigant's rights in house dismantlement. It studies the stipulations of the rights related to the dismantled house in the present law, from the aspect of the civil theory, and the content of the dismantlement litigant's right, which includes three aspects: the content of the dismantled rights, the content of the dismantlement interest right and the right nature. The first aspect, according to the basic theory of the Civil Law and in the stipulation of the Property Law, the right of the dismantled in our country includes: the house ownership, the land use rights in house, the easement, and the management rights etc. In the special land system of our country, the transfer of the land use rights should be deemed as the bond between the government and citizen. According to the relevant laws and regulations at present in our country, there has the special relationship between the land use rights and the house ownership, which is separated in the surface and combined in fact. The second aspect, the content of the dismantlement interest right includes: the renting right of lessee, the easement established by lessee, the management rights of lessee, and the mortgage right of the mortgage holder etc. The third aspect, the right nature discusses that the relevant right of the dismantled house should belong to the civil right scope from the aspects of the parties'equality, the civil nature of content, the civil property of the law effect.The second part is the Contract Law protection of litigant's rights in house dismantlement in two aspects of the principles followed by the Contract Law protection, and the ways of Contract Law protection. The house dismantlement bases on the dismantling person and the dismantled person, and the Agreement of Compensation & Resettlement for the House Dismantlement signed by the dismantlement interest person. The process of dismantlement is also the process of fulfilling the agreement by both parties. The rights and obligation of both parties are showed sufficiently in the agreement. Therefore, it first uses the relevant rules in the Contract Law to protect the right for the dismantled and dismantlement interest person. In the principle followed in the Contract Law, it describes the principle of contractual freedom and reasonable compensation principle related closely with the Agreement of Compensation & Resettlement for the House Dismantlement. In the ways of Contract Law protection, it describes the forms of liability for breach by the dismantlement person in the process of dismantlement, the correspondent obligation taken on by the dismantlement person. Since the Agreement of Compensation & Resettlement for the House Dismantlement is the standard contract generally provided by the dismantlement person, it is ineffective in the agreement for the articles of aggravating the liability for breach of the dismantled person, and exempting the dismantlement person's the liability for breach. The article explanation for the Agreement of Compensation & Resettlement should be applied in the article explanation for the standard contract. The third part is the Infringement Law protection of litigant's rights in house dismantlement. It is divided into two aspects of the principles followed by the Infringement Law protection, and the ways of Infringement Law protection. In the aspect of the principles followed by the Infringement Law protection, it describes the principles of respecting citizen's private right and prohibiting the right abuse which is related closely to the infringement in the house dismantlement. In the ways of Infringement Law protection, it analyzes the important components of the infringement obligation of the house dismantlement. It emphasize on that is to apply the principle of fault presumption to the dismantlement person's infringement in the house dismantlement, and to adopt shift of burden of evidence. At last, it analyzes the situation of infringement and breach obligations in the house dismantlement, and how the dismantled person and the dismantlement interest person to litigate in favor of protecting own legal rights and interests.The fourth part is the legislation perfection of litigant's rights in house dismantlement protection. It is divided into three aspects: using the legislation experience abroad for reference, the legislation assessment in domestic places, and the legislation perfection of litigant's rights in house dismantlement protection. In the aspect of using the legislation experience abroad for reference, it analyzes the system of the System of Compensation for the House Dismantlement and successful experience in the U.S.A., Germany, Japan, and the Hong Kong area of our country. The domestic local legislation assessment analyzes separately the main legislations in Beijing, Shenzhen, Jiangsu Province, Nantong City of Jiangsu Province concerning the house dismantlement, and the experience which is deserved to be affirmed and popularized. In the aspect of the legislation perfection of the right protection, firstly, from the aspect of the Contract Legislation protection, it proposes that, in the house dismantlement it should clarify the principles of equality, being voluntary and consultation, set up the fair compensation system, standardize the standard clauses in the Agreement of Compensation for the House Dismantlement, set up and perfect the special accounts for the house dismantlement and deposit system. Next, from the Infringement Law protection, it brings forward the idea of the law of the inviolable private property, and clarifies the principle of fault presumption for the dismantlement person. Last, from the aspect of setting up the justice law procedure, it brings forward the procedure and principle in the commercial dismantlement. Especially, it brings forward the viewpoint for which it should adopt the procedural administration permission in the house dismantlement. The official government first gives the dismantlement administration permission notice to the developers at the establishment of the project. Then the developers (the dismantlement persons) consult equally with each the dismantlement person, and the dismantlement interest person, and sign the Agreement of Compensation & Resettlement for the House Dismantlement. After all signed, the official government issues the dismantlement administration permission license. In this way, it avoids the government's first breach of the agreement on the question of remising the land ownership, and also eliminates the excess interferences of the administrative power, and protects the rights of the dismantled party to the utmost.