On The Legitimacy Of Property Right Restriction Of Private Immovable Cultural Relics

Among the immovable tangible cultural heritages in China,the law has the strictest requirement on the protection of immovable cultural relics.However,when these protection requirements fall on privately owned immovable objects,the realization of the right to use,benefit and dispose of the house and its ancillary land is limited.These restrictions are produced for the public interest of cultural relics protection and have a legitimate basis in the constitution.In theory,it has become a constitutional consensus that private property rights should bear social responsibility for public interests and tolerate legal restrictions;in our country,there are also socialist principle clause,general restrictions on basic rights clause,cultural rights clause and cultural heritage protection clause that endorse them on constitutional norms.However,when examining these restrictions using the principle of proportionality that should be followed in the restriction of fundamental rights,it is found that some of its restrictive measures were inadequate in legitimacy,mainly because of strict repair requirements,and the restrictions set by the legal norms may lead to the excessive restriction of regulatory taking,which seriously violates the proportionality in the narrower sense,in extreme cases.In this regard,compensation should be given to remedy the legitimacy by compensating for the excessive sacrifice of part of the economic value of the property.However,in the current legislation,the state compensation liability is obscured by administrative assistances,and the property owner’s right to claim assistance is built on stilts.It is also necessary to establish a corresponding compensation mechanism.For regulatory taking,we can learn from the relief ideas of inverse condemnation in the United States to provide compensation for property owners.Legislation should also focus on the establishment of a repair compensation mechanism.