Research On The Ownership And Utilization Of Illegal Buildings

In China, the phenomenon of illegal constructions mustn't be ignored. The processions of illegal constructions must be strictly according to the law, without any exceptions. However, could the builder enjoy any rights over the illegal constructions before the procession of them? What rights could the builder enjoy? Are there any restrictions to the builder's rights? Our theoretical researches on illegal constructions are mostly limited to the identification and procession of illegal constructions. Scholars who doing researches specially on the ownership and utilization of illegal constructions are very few, but they do made some valuable suggestions. Since the promulgation of the "Property Law", and the implementation of "Supreme People's Court on hearing the case of urban housing lease contract dispute the interpretation of the specific application of legal issues," the dispute of the legal attribute has being slowed down, and set down a specific standard for the hearing of the dispute over the illegal constructions lease case. However, the hearing of such case as dispute over the sales of illegal constructions, neighboring right, the division of illegal constructions in inheritance etc, are still lack of legal norms. Illegal constructions are also valuable living resources. They are an integral part of total wealth of society, and should not be excluded from the regulation of law. The civil law should provide for the ownership and utilization of illegal constructions, so that they can play their most effectiveness.This article is divided into four parts; the full text is about 3.3 million words.The first part is an overview of illegal constructions. Due to various reasons, the identification and procession of illegal construction has shown some arbitrariness, at present stage in china. This is not conducive to the protection of civil property rights and does not conform to the basic requirements for administration according to the law. The author believes that illegal construction is real property that violates building permission. The building permission, including land use planning and management permission, urban and rural planning permission, and building construction permission. The real property violated any of the permissions belongs to be illegal construction. Here the "construct", means first construct, renovation, expansion, renovation, reconstruction etc. Illegal constructions have some special character such as "inherent illegality",violates of administrative law,to be disposed and social function etc. There are many theories about the ownership of illegal constructions, such as Not protected by law, Theory of proprietary right, Theory of possession, Property that going to be confirmed, and Incomplete property rights and so on. Among them, the theories of Possession and Ownership have been debating for a long time, and together they became the most powerful doctrines on illegal constructions. The author supports the Theory of possession.At the second part, the thesis presents the legislation over illegal constructions in Germany, France, Japan and Taiwan of China'. The identification and procession of illegal constructions is entirely governments'administrative action, and there should be enforcement of administrative procedures. The punishment of illegal construction should be insisting the principle of separated. To the people who break the law, there will be administrative penalties or even criminal penalties. To the construction itself, there will be orders to prohibit the utilization of illegal construction, to be dismantled, or to be certificated. These advantage experiences are what our legislation should learn. In China, there are no less than two dozens of laws that have a relationship with the illegal construction. Our legislative has been paid too many attentions to the identification and procession of illegal construction, but had overlooked its ownership and utilization; too many attentions has been paid on the penalty of illegal construction, but ignored the prevention; some local laws provide the ownership and utilization of illegal construction, but it has been violated the legislative principle.The third part is about the theoretical analysis over the ownership and utilization of illegal construction. According to current laws, illegal acts in fact can not create property rights. But the illegality state of the acts doesn't affect the possession of real estate. Possession can exclude others from prejudice, and maintain the fact of possession, but can't to be against the public authority. The possession of illegal constructions is possession without rights, but belongs to be malicious possession. The builder could enjoy the possession immediately upon the establishment of the constructions. They could protect the interests of their possession through self-help, exercise claims of real rights and creditor rights. Enjoy the benefit also means to bear the corresponding legal responsibility. The possessors must obey the executive decision of illegal constructions without any condition. The possessors also have to take care of others in good faith. They have the duties to ensure that the social harm of illegal construction will not be increased. If the illegal constructions cause some injury, the possessor should be responsible for the damages.The fourth part of this article is about the utilization of illegal constructions. The real estate rights never changed, and the contracts should be also invalid in the sales of illegal constructions. However, according to the principle of legal actions, the behavior of illegal constructions'sale can be interpreted into the transfer of possession to balance the rights and obligation. Illegal constructions mustn't be in mortgage. The lease contracts of illegal constructions are void. But the lessee's requests for the rent should be supported by law. In fact, the lessee's requests for the rent are the unjust enrichment claim of the possessor. The agreed rent is just a calculation. Illegal constructions could be inherited, and also could be bequeathed. But the defects of real estate also transfer to the successor, and they also undertake the obligations and responsibility. The possession of illegal constructions reflects the interests protected by law. So it can be the object of enforcement. But this does not mean the legalization of illegal construction, but only a way to pay back debts.In order to complete this paper, the author used value analysis, empirical analysis, comparative studies, legal hermeneutics, research methods of sociology law, etc. Currently, the Possession is the way to solve the problem of ownership and utilization of illegal constructions. In order to prevent the arbitrary and inappropriate expansion of the scope of illegal constructions, this article firstly defines illegal construction; illegal constructions should not be out of adjustment of law; the protection of possession can be bitterly to solve the ownership and utilization of illegal construction, possessor can take a variety of ways to maintain their possession, and they must also undertake special obligations and responsibilities; the writer of this paper supposed to use the transfer principle of legal acts to balance the rights and obligations between the buyer and seller; the request for payment of the rent is the unjust enrichment right of possessor; illegal constructions can be inherited, be bequeathed; it also can be enforced by the court.