Discussion On Civil Relief Of Military Real Estate Loss

In the background that our country is gradually short of land resources and the armypractically allows part of real estate to participate in market transaction, disputes causedby illegal transactions of military real estate emerge increasingly, which directly threatenthe security and integrity of ownership. Military real estate loss mentioned in this thesisrefers to the circumstance that military land use right and building ownership is damageddue to violation of laws and rules in transactions with military real estate as the subjectmatter. This thesis consists of four chapters. The first chapter is prolegomenon, and thesecond to the fourth chapter is to discuss the problems of, systemic reasons for andsuggestions on civil relief of military real estate loss respectively.The existing civil relief of military real estate loss has problems in three aspects. Thefirst is improper separation between the subject with disposition right and the litigationsubject of military real estate. In judiciary practice, those units without disposition right ofmilitary real estate generally represent the army to excise the litigation right, which easilyresults in damage to the rights and interests of the owners of military real estate in thelegal form of judicature; The second is that protection system of military real estate ishard to completely apply to the civil relief practice. In judiciary practice, litigation partiesof the army generally claim that military real estate transaction contracts are invalid ormilitary real estate does not apply to the bona fide acquisition system for the reason thatnational defense assets exclusively belong to the state and military real estate belongs tonational defense assets. This claim, however, generally obtains no support. The third isdeficiency in “internal recovery”. The current civil relief to military real estate loss onlypays attention to recourse to the counterpart of military real estate transaction contracts,while lack of precedent of assigning the civil responsibility of management staff breach ofduty in the army.The main reason for the above-mentioned problems of civil relief of military realestate loss is defects in the system that national defense assets exclusively belong to thestate, transaction approval system of military real estate and the related elementary civilsystems. The provisions that national defense assets exclusively belong to the state areinconsistent with other laws and rules. It is not definite whether military real estatecertainly belongs to the state. Though military laws, rules and regulations stipulate strictexamination and approval procedure of military real estate transactions, the provisions are not reasonable enough with relatively smaller scope of validity. Contract invalidity systemneglects the circumstance of violation of compulsive provisions in military laws and rules,which is an omission in legislation. Management staff in the army have inescapableresponsibility for military real estate loss, but relevant provisions in laws about how toassign their civil responsibility are not definite enough.In order to improve civil relief system of military real estate, firstly, it is to improveclassification protection system of military real estate and to stipulate that only militaryreal estate of “military infrastructure” belongs to the state; secondly, it is to pay attentionto connection between provisions of civil laws and military internal regulations, improvecontract invalidity system and elaborate the legal provisions on how to assign the civilresponsibility of the management staff in the army; lastly, it is to properly enlarge thescope of military litigation subjects in civil relief of military real estate so as to providelegal basis for the current practice of separation between the disposition subject and thelitigation subject of military real estate, and endow military prosecuting organ withqualification to assign civil responsibility of management staff in the army.