Research On Relief For Illegal Buildings Enforcement

In our country,illegal construction is a more difficult mess.If we pay less attention to its problems,it will not only lead to the disorder of urban and rural planning and affect the social public interest,but also damage the rights of private subjects,which is not easy to play the utility value of things.Under the background that the private law system rarely regulates illegal construction,this paper attempts to return to the dimension of "right" from the perspective of "power" to explore the relevant content of illegal construction,mainly related to the right relief and the application of procedures in the enforcement.Because the illegal building does not meet the requirements of the current property law of our country on the elements of building legal construction,its builder has the de facto ownership of the illegal building rather than the legal real right,thus trying to clarify the nature and content of the rights of illegal building.Based on this,this paper uses case studies,literature studies,comparative studies and other methods to face up to the theoretical and practical shackles of illegal construction in the enforcement of relief procedures,sort out the difficulties and miscellaneous problems of judicial practice,and participate in the relevant implementation theory to discuss the feasibility of the enforcement of relief system applicable to illegal construction in China,including procedural relief,substantive relief and other general relief methods And special relief methods(such as participating in the distribution of objections,etc.),and put forward the balance of executive and administrative authority to regulate illegal construction and other supporting measures,so as to try to put forward the perspective and point of view suitable for the implementation practice to solve the problems related to illegal construction in China.In addition to the introduction and conclusion,the text is divided into five parts,as follows:The first part introduces the current situation,problems and causes of the Enforcement Relief of illegal construction in China.From the legislative status and judicial practice to analyze the enforcement of illegal construction in China,there are mainly problems such as not identifying the defects of illegal construction rights,not recognizing the enforcement value of illegal construction,allowing the enforcement without paying attention to the protection of procedural interests and substantive interests.The main causes of the problemsare: the nature of illegal construction rights is not clearly defined,there are cognitive biases in the enforceability,the enforcement agencies mistakenly regard illegal construction as legal construction enforcement,do not recognize the application of relevant enforcement relief channels,and the disposal methods of enforcement agencies are different.The second part is to discuss the necessity of our country’s illegal construction enforcement relief.First of all,it defines the legal nature of illegal buildings,analyzes the existing theories in the academic circle,and draws the view that although illegal buildings do not conform to the legal property rights stipulated in the property law,they should be applicable to the factual property rights;secondly,it distinguishes the difference between illegal buildings and the enforcement of legal buildings,so as to highlight the particularity of the enforcement of illegal buildings,and pay attention to the enforcement and relief of illegal buildings;finally This paper discusses the necessity of the relief of illegal construction compulsory execution from the perspectives of improving the execution process,unifying the disposal mode of the execution organ,and preventing the person being executed from evading the execution maliciously.The third part focuses on the discussion of the implementation of relief for the illegal construction defects.According to China’s relevant implementation regulations,it is clear that the enforcement court should be responsible for finding out the defects of illegal buildings.In the process of execution,the parties and interested parties may raise objections to the execution of the illegal act of the execution court,so as to protect their informed interests in the procedure.However,after the execution is completed,the acceptor of the illegal building may claim damages from the execution court for reasons such as inability to transfer the ownership or forced demolition of the illegal building.The fourth part focuses on the analysis of the execution relief of the illegal construction defects.First of all,we should distinguish the reasons why the executive organ refuses to implement the illegal construction.If the reasons are reasonable,there should be no application of relevant relief channels,otherwise,it will be the opposite.Secondly,when the executive organ permits the execution of illegal buildings,based on the particularity of its enforcement,it should pay attention to the possible illegal acts in the execution process to clarify whether there is procedural relief measures.Thirdly,the substantive relief of illegal buildings belongs to the point of dispute,referring to the response mode of Taiwan,from the existing provisions of our country,it is clear that outsiders can file a lawsuit of dissent(excluding the claim of confirming rights),and the enforcement can be excluded when certain requirements are met.Finally,in view of the particularity of illegal construction,this paper demonstrates the possibility that the priority of compensation,mortgage and other rights are conducive to the establishment of illegal construction,and makes it clear that the obligee is not for the purpose of excluding enforcement,and can be remedied through the distribution objection and distribution objection lawsuit in China.The fifth part is about the system and measures that our country should assist in the implementation of relief for illegal buildings.First of all,due to the dual regulation of illegal construction by public and private law,judicial power must respect administrative power in the enforcement.Therefore,in order to enforce the credibility,it is necessary to establish a communication mechanism with administrative organs to determine whether and how to implement the illegal construction by defining the types of illegal construction.Secondly,as a real estate,illegal construction can not judge the ownership of its rights only through possession,and it is also easy to generate rights disputes,so it should be applicable to the management registration similar to the nature of filing.Finally,after the execution,it should be supplemented by some necessary remedies such as unjust enrichment,compensation for damage and state compensation to strengthen the relief interests of the injured.