A Study On Civil Legal Issues Of Illegal Construction

With the rapid development of China’s economy,the contradiction between housing demand and land scarcity intensifies,and illegal construction exists correspondingly,which leads to a large number of civil disputes about illegal construction.In judicial practice,the settlement of such disputes is always a difficult problem.In the disputes over the confirmation of illegal building ownership,most courts think that the confirmation is the scope of administrative power rather than the scope of civil cases,and reject the claim for confirmation.In the dispute of illegal building lease contract effectiveness,the court shall apply to the Supreme People’s Court about town house lease contract dispute cases "the explanation of the concrete application of law in article 2,decided that the lease contract is invalid,but the decision often lead to have actual performance one of the parties not protected interests.In the dispute over the validity of the contract of illegal construction,there is no clear regulation on the validity of the contract of illegal construction,which leads to different judgment of the same case and damages the judicial authority.It is of great significance to properly solve the ownership of illegal construction,the validity of illegal construction sales contract and lease contract in legislation and judicial application.It is conducive to realizing the realization of the same case and the same judgment,maintaining judicial justice and properly resolving disputes between the parties;The discussion on the rationality of current judicial interpretation is also conducive to the improvement of subsequent legislation and judicature.As far as possible to affirm the effectiveness of the illegal construction transaction contract,avoid the waste of resources,increase the stability of the transaction;To encourage administrative organs to actively perform administrative acts.In view of the above problems,this paper proposes that,first of all,regarding the ownership of illegal construction,illegal construction is in line with the "factual act" of Article 231 of civil Code,and the builder of illegal construction should acquire ownership based on his factual act.Secondly,as for the validity of illegal construction lease contract,the current judicial interpretation has certain limitations.The lease contract should be classified to determine the validity of the contract,that is,the illegal construction lease contract violating the land planning type,its content violating the mandatory provisions of validity and invalid;The violation of the planning lease contract is valid.Finally,regarding the validity of the illegal construction sales contract,according to the principle of real right differentiation,the illegal construction sales contract is not necessarily invalid,as long as the illegal construction sales behavior does not violate the mandatory provisions of validity,it is a valid contract.As for the illegal construction disposal,whether the property right changes should be classified according to "remedial measures can be taken" and "remedial measures cannot be taken",so as to make different validity identification.The illegal building that "remedial measures can be taken" has the possibility of obtaining the construction project planning permit and land use planning permit,and can be converted into a legal building after taking remedial measures.In this case,the illegal building sales contract becomes effective from the beginning;On the contrary,the illegal construction that "cannot take remedial measures" cannot be transformed into legal construction due to the substantive violation of law.At this time,even if the sales contract is valid,it cannot have the effect of property rights change.