Review On The Relationship Between Land Expropriation,house Expropriation And Compensation In China

China’s current "Regulations on the Collection and Compensation of Houses on State-owned Land"(hereinafter referred to as "the Regulations for the Requisition")and the Law on the Administration of Lands of the People’s Republic of China(hereinafter referred to as "the Law of the People’s Republic of China")respectively on houses and collectives on state-owned land.A series of more detailed regulations have been made on the procedures for the collection of land and its attachments,the scope of compensation,and the evaluation mechanism.However,because the relationship between the collection and compensation is not clear enough,the system is artificially and improperly divided into The decision on expropriation and the decision on compensation lead to the independent and separate judgment of the legality of expropriation and compensation in practice,which makes the application of the Regulations,the Civil Administration Law and the Constitution,the General Principles of the Civil Law and the Property Law.Conflicts arise when laws and regulations stipulate.Correspondingly,in practice,there is also a delay in making compensation or no compensation after the administrative agency makes the levy decision,and considers that the levy decision lacking compensation can be established separately,legally and effectively,resulting in the uncollected person being compensated without reasonable compensation.Losing the ownership of the house and the right to use the land,which in turn caused the expropriated person to lose the real estate and the legal rights and interests were illegally damaged.Judging from the case of the house expropriation department making a decision without compensation for no reason,due to the lack of rigorous legislation,the"Regulations" artificially separate the narrowly imposed and compensated "two sides of this coin",resulting in the practice of such as The levy of lack of compensation is still recognized as legal and valid,and the compensation without levy is recognized as a legal and effective chaos.The practice of the court to divide the levy into levy is determined by the compensation decision.It is mainly based on the current provisions of the "Regulations"and the "Turkish Control Law".It is considered that the levy decision and the compensation decision are independent of each other,one of which is illegal.It does not affect another decision,so at the "actual operation" level,the remedy for the rights of the person to be expropriated can be realized without the overall judgment of the effectiveness of the expropriation.However,this view does not conform to the principles stipulated by China’s Constitution,the General Principles of Civil Law,etc.,which increases the litigation caused by the parties’ need for separate prosecution,improves the difficulty of defending the rights of the expropriated person,and increases the number of cases heard by the people’s courts.It leads to the waste of judicial resources and is not conducive to the protection of houses as special property.The principle of "no compensation,no expropriation" has been established in public law of all countries.The German administrative law theory even compares the relationship between expropriation and compensation as a "lip-tooth" relationship,and calls the compensation clause as a "lip-tooth clause." Comprehensive investigation of relevant domestic case judgments and foreign legal practice,the relationship between land house expropriation and compensation is the relationship between the lips and the teeth,which is "two sides of the same coin".The two together constitute an administrative expropriation.Therefore,the judgment of its effectiveness must also be The two judge as a whole.From this perspective,China has reviewed the three possible relationships between the collection and compensation in response to the incident:The first is the effect of the no-compensation compensation agreement.From the current practice,the court generally considers the compensation agreement to be effective.Seeing the effectiveness of the compensation agreement from the relationship between expropriation and compensation,it is necessary to distinguish between the expropriation of houses on state-owned land or the expropriation of land.When there is no levy decision,the housing compensation agreement on the state-owned land will be deemed effective regardless of whether it is signed for the purpose of public interest.However,when the land acquisition decision is made,whether the compensation agreement is valid or not depends on whether it is needed for the public interest.If the compensation agreement is not signed for the needs of the public interest,then the nature of the agreement is the sale of the land,which is invalid because it violates Article 10,paragraph 4 of the Constitution.If the compensation agreement is signed for the needs of the public interest,because the administrative agency has the right to choose the freedom of administrative action,you can choose the public law method(such as levy),or you can choose the private law method(pay the consideration purchase)to achieve administrative purposes,you can apply the constitution.Article 10,paragraph 3,is free from the restrictions set out in Article 10,paragraph 4 of the Constitution,and the agreement is therefore valid.The second is the legal effect of the uncompensated levy decision.Judging from the current practice,the court generally thinks that the levy decision is legal and valid,and the levied person only enjoys the right to compensation.However,without compensation,there is no expropriation.Therefore,in the case that the administrative agency lacks compensation after making the expropriation decision,the expropriated person shall have the right to choose the right relief method,and may request the court to confirm that the expropriation decision is invalid or to revoke the expropriation decision.The statutory duty of deciding to legally and directly requesting the administrative organ to perform compensation may also be brought to the court for confirmation that the levy decision has been abolished if the levy authority has not given compensation for a long time.Third,the effectiveness of the earlier compensation agreement is illegal.Judging from the current practice,the court is accustomed to adopting a divisional trial,separating the legality of the prior levy decision and the legality of the subsequent compensation agreement,and believes that the legality of the levy decision does not affect the effectiveness of the compensation agreement.However,from the two sides of the levy and compensation is a coin,there is no compensation without levy.If the levy decision has a significant and obvious violation of the law,the levy decision is invalid.According to the principle of consistency of rights and obligations,the compensation agreement is invalid.If the levy decision is a revocable situation,the compensation agreement is not invalid because the levy decision is illegal,that is,if the levy person does not request the court to revoke the levy decision,the compensation agreement shall continue to be valid;if the levy person requests the court ruling to revoke the If the levy decision invalidates the levy decision,then the compensation agreement should be revoked accordingly;if the levy decision is only a procedural violation that does not affect the rights of the levee,and the levy person does not file a lawsuit against the court based on free will,at this time It should be confirmed that the collection decision is illegal and the compensation agreement continues to be valid.In summary,China’s laws should be improved from the following aspects:First,the unified decision on the levy will be undertaken by the organ to bear all the legal consequences caused by the levy,such as the signing of the compensation agreement in the name of the levy decision;The time point of transfer of rights is determined as the time when the compensation payment is delivered instead of the levy decision;the third is to clearly stipulate that the amount of compensation should be equal to the actual value of the land and house to be levied;and the fourth is to stipulate that the person to be levied should be signed with the levy person within a reasonable period of time.The compensation agreement or the decision to make compensation is the statutory duty of the levy authority,and clearly stipulates the legal consequences and the legal responsibilities of the levy authority in performing the above duties,such as the legal consequences of the revoked decision.