Research On Administrative Compensation Standards For Illegal Relocatio

The development process of administrative compensation standards for illegal expropriation and relocation traced back to the source was scattered in various laws and regulations before the national compensation legislation,and experienced the process of mixed application and separation and independence with civil laws.In the early practice after the legislation of the state compensation system,"the minimization of administrative compensation" became the mainstream,and the administrative organs avoided the state compensation liability in practice due to the limitation of the separate legislation mode of the state compensation system,so there appeared the situation of the competition between the right of compensation and indemnification.In recent years,there has been a tendency of "administrative compensation indemnified".While the administrative compensation standard is adapting to the development,there are also many practical problems: the evaluation and pricing mechanism based on compensation is not perfect,which indirectly reduces the cost of illegal activities;The compensation standard is too low,from the choice under the competition of compensation and indemnification to the realization of compensation by forced indemnification,which is contrary to the principle of "illegal compensation,legal indemnification".In judicial trial,administrative compensation and administrative indemnification are confused and misused,resulting in substantial injustice of the result of litigation.In view of the above problems,the view that "administrative compensation is not lower than administrative indemnification" was put forward in judicial practice.The Supreme People’s Court redefined the administrative compensation standard of illegal expropriation and relocation from three perspectives,namely,market value,time point of compensation and scope of application,in the form of communique cases.In the subsequent application process,influenced by the background of illegal expropriation,market price space,and the equality of interests of all parties,different understandings and discussions on "administrative compensation is no less than administrative indemnification" were derived from practice,which mostly reflected the realistic demands of "filling up and making up" for damages.In reality,the compensation standard is actually a trial mechanism from "bargaining" to "premium",which is a breakthrough of the original principle of comfort compensation and an attempt of the mixed system standard mode in practice.The result of premium is reasonable to some extent.The consummation conception of administrative compensation standard revolves around value reconstruction,system arrangement and relief consummation.We should draw lessons from the fair market value,reshape the principle basis of the evaluation and pricing mechanism,establish a compensation time point based on multi-stage classified evaluation,and consider the subjective demands of the expropriated.It affirms the role of mixed normative mode in practice,partly cites civil legal provisions,enriches the normative content of administrative compensation standards,fills up the legislative defects,and realizes the effective convergence of legal provisions.Punitive compensation is limited to be introduced to raise the standard of administrative compensation for some serious illegal expropriation and relocation acts,so as to deal with the problem that the standard of administrative compensation is too low in the special case of illegal expropriation and relocation.Therefore,a two-level administrative compensation standard with compensatory compensation and additional punitive compensation is constructed.