On The Restrictions Of Real Property By Law

In recent years, with the development of real estate industry, the increase in industrial park planning, and the expansion of urbanization, the demand for land has surged in China. Urban house demolition and rural land acquisition are also increasing. As the government illegal expropriation of real estate and the compensation are too low, there have been many violent anti-demolition and anti-levy, collective petitions and so on. These events do not only be concerned by the community, they also raised a number of legal scholars in China. In this paper, I will research the restriction of real property in order to realize it's necessity and feasibility, then find the various problems in current and propose the recommendations.This paper is on real property law restrictions, but involving the balance of private protection. The land is owned by state or collective in our country, individuals do not enjoy the ownership of land. so restrictions of real property excluded from the scope of individual land ownership. it mainly restricted individual land use rights. The germination of the social owenship thought and the thought's embodiment in legislation are the ideological background and legislative background, the restrictions on real property have become the world's general trend of development of property law. The changes in the value and the function of contemporary real property law are showed by the change from "personal standard" to "social standard", from the protection of "private ownership " to maintain "public distribution" and from the "importance of wonership" to "concernde about the ues of property". It can be seen that while protecting individual property ownership, law pay more attention to the sue of property and the resulting public interest. The scarcity of property and the social function of the load need us to improve the efficency of land and allocate land resource rationally through the restrictions on land rights. Analyze the values of efficiency and equity, we must improve the dfficiency of land and focus on equity pay more attention to the rational alloction of land interest. Analyze the balance of community between private interest, when dealing with the conflict between the two. balance the relationship between the two in the basis of public interest. Maintaining the order of property rights require us to contrain interests of all parties to take into account in the case of conflict of rights in order to maximize the benefits. China's current legislative restrictions on real property law still exist some problems. We emphasis too much on public interest, while ignoring the protection of personal interests for a long time, opposite overall interests and personal interests and sacrifice personal interests to safeguard the overall interests. Specifically, these problems are mainly in limiting on real property without due process requirements and lack of supervision of legal procedures such as time discation and narrow content of administrative hearing which's system is not perfect and status is not clear. The rights of real property due to procedural defects are not be properly protected, so that the lack of procedural fairness lead to substantial injustice; the law dose not define the public interest clearly and legal concepts related to fuzzy, the government abuse public interest to restrict real property excessively; rural collective land ownership is not clear and members right of individual farmers is lack of maneuverability. Farmers' land rights can not be exercised, peasant land rights can not be effectively protected and relieved when they are violated; the system of real estate expropriation is still not perfect such as no principle of compensation, compensation is too narrow, the low standard of compensation and single compensation. Real property owner can not be effectively compensated and the loss of interest can not be make up.To solve these problems of real property restrictions, this paper attempts to propose solutions as:clear the principle of levying real property in the legislation such as constitutional principle, the principle of legal restrictions and resonable limitation, the principle of proportionality,the principle of balance and so on. Thus we can regulate real estate restriction in principle to make up for the defects specified in imperfect; improve the hearing procedures status in real estate restriction, forward the time and expand the scope of the hearing, detail hearing procure, thus we can ensure procedural fairness of the law; stipulate the concept of public interest and cite the matters of public interest, then set the exclusion clauses to limit the scope of improper expansion of the public interest. Finally, determine the principles defined in the public interest; construct and clear rural collective land ownership, perfect the right mechanism of individual farmers; expand the scope of compensation and raise the compensation standards to effectively protect the interests of real property.