The Perfection of Housing Demolition Procedure and Legislative Suggestions in China
Published:
2010-07-31
Summary:Housing demolition is the government's exercise of public power in accordance with the law to restrict private rights and meet the needs of the public interest, the legitimacy of this restriction and derogation of private rights and interests needs a reasonable mechanism to protect, especially through the procedural mechanism to make up. There are many problems in China's current demolition procedures. The author thinks that the following amendments should be made: first, straighten out the relationship between expropriation, compensation and demolition, and insist on the order of compensation first, then expropriation and finally demolition. Secondly, the public interest and "reasonable compensation" are defined by reasonable procedures. Thirdly, improve the corresponding procedures and systems, including the procedural rights of the demolished, due process of law and compensation procedures. Finally, add procedures for demolition for commercial interests.
Key words:expropriation; demolition procedure; legislative proposal
In recent years, disputes caused by demolition have continued to occur in various places, such as the violent resistance of "Pan Rong and his wife" in Shanghai; the self-immolation of "Tang Fuzhen" in Chengdu, and so on.[1]These events reflect many problems in the current demolition system: due to the lack of effective restrictions on public power, it is common for the government to deprive and restrict civil rights in the name of public interest; fair compensation is not enough; lack of due process, the government is pursuing public interests. In the process, the public was not given the opportunity to participate in the hearing; private rights relief was insufficient, and many local governments' violations of civil rights were not settled.
Article 42 of my country's 2007 Property Law clearly stipulates for the first time that the nature of house demolition is the expropriation of unit and individual real estate, and the essence of expropriation is that the government exercises public power to restrict private rights to meet the needs of public interests. Therefore, the demolition process will inevitably involve the measurement of public interests and private interests, which requires mechanisms to ensure the legitimacy of restrictions and derogations on private rights. It has become a consensus that the relativity of substantive law needs to be remedied through procedural mechanisms.[2](P503)The expropriation systems of most countries in the world have strict procedural regulations. For example, the complex procedures of public welfare expropriation in France are eye-catching; South Korea, in accordance with the provisions of the law of collection, the compulsory acquisition of the required land must be carried out in strict accordance with the procedures.[3]As China's "Urban Housing Demolition Management Regulations" (hereinafter referred to as the "Demolition Regulations") and local urban housing demolition management regulations have few standardized procedures, it is urgent to design a set of fair and reasonable procedures to solve practical contradictions.
1. status of housing demolition procedures in China
China's current stage of housing demolition generally through the following procedures:
1Application for Planning Land Permit
The demolition person applies to the relevant government planning management department for a construction land planning permit in accordance with the regulations. If the conditions are met after examination, the planning management department shall issue a construction land planning permit to determine the geographical scope of the house to be demolished.
2Preparation of demolition plan and scheme
After obtaining the right to use the land, the demolisher shall go to the local police station and housing management office to extract the permanent residents and their real estate conditions within the scope of demolition, and prepare a detailed demolition plan and plan according to the verified situation and the national and local regulations on compensation and resettlement for demolition.
3Application for demolition permit
The demolition person shall apply to the housing demolition management department of the city or county people's government where the house is located for a demolition permit.
4Release of demolition notice
While issuing the house demolition permit, the house demolition management department shall announce the demolition person, demolition scope, demolition period and other matters specified in the house demolition permit in the form of a house demolition announcement.
5B. Sign demolition compensation and resettlement agreement
After the demolition announcement is issued, the demolition person and the demolished person shall, in accordance with the regulations, conclude a demolition compensation and resettlement agreement on matters such as the compensation method and compensation amount, the area of the resettlement house and the resettlement location, the relocation period, the relocation transition method and the transition period.
6Demolition implementation
The demolition person shall complete the demolition task within the prescribed time limit. If the demolished person refuses to demolish the house without justifiable reasons within the demolition period stipulated in the house demolition announcement or the decision of the demolition authority, the people's government at or above the county level may make a decision to order the demolition within a time limit. The people's government instructs the relevant departments to force the demolition, or the house demolition department applies to the people's court for compulsory demolition..
2. the Problems of Housing Demolition Procedure in China
The relationship between (I) expropriation, compensation and demolition has not been straightened out.
Expropriation is essentially an administrative compulsion, and compensation must be made to complete the expropriation, and the two are inseparable. First expropriation, compensation, and then demolition, the procedure is reasonable. In the expropriation and demolition for public interests, according to the provisions of the Constitution and the Property Law of our country, compensation is a legal and effective constituent element of expropriation, and it should be completed before the house demolition, but in the third chapter of the Demolition Regulations "In the specific provisions of" Demolition Compensation and Resettlement ", compensation and expropriation are artificially separated, the compensation problem that should have been completed in the expropriation stage has been extended to the demolition stage, and the compensation has changed from part of the expropriation procedure to part of the demolition procedure.
Because the order of demolition and compensation is reversed, the rights of the demolished are wantonly infringed, coupled with the fact that the demolished are in a weak position and basically have no bargaining power, which eventually leads to their violent resistance to demolition.
(II) law only provides for the principle of public interest, but lacks a set of procedures
In Shanghai, the small building of Pan Rong and his wife was demolished to build the Hongqiao Airport hub; in Chengdu, Tang Fuzhen's house was demolished to build a sewage treatment plant, all for the public interest. "Public interest" is a recurring concept in demolition activities, but it is not clearly defined in law, so that it is often alienated as a symbol in demolition, and even commercial development is called "public interest.
Because the connotation and extension of public interest are not clear, and has the characteristics of "advancing with the times", the "Property Law" does not define the concept of public interest, nor does it list its clear types, but it should guard against the risk of being symbolized. In some countries, the law does not clearly stipulate the connotation of public interest, but it does not hinder the identification of public interest. Its experience is to design a set of identification procedures while making principled provisions on public interest in legislation. The experts who formulated the "Property Law" in my country also believe that there should be a set of procedures for determining public interests. The government should decide whether to implement expropriation in accordance with its authority and procedures. At the same time, there must be a relief mechanism to give judicial organs jurisdiction. If a citizen thinks that the government's expropriation is not in the public interest, he should be allowed to file an administrative lawsuit in the court, which will eventually be decided by the court.[1]
Lack of due process of law protection for the rights of (III) demolished persons
When an administrative organ makes an administrative act that affects the rights and interests of the administrative counterpart, it must follow the due process of law, including informing the counterpart in advance, explaining the basis and reasons to the counterpart, listening to the statement and defense of the counterpart, and providing the counterpart with corresponding relief channels afterwards. This is the requirement of the principle of due process of law, and it is also a common practice in all countries in the world. However, in our country, the rights and responsibilities are asymmetrical, and there are too few restrictions on power, and the rights of the demolished are not protected by due process of law. Performance in:
First, the planning, expropriation and demolition process is not open, the demolition of the people do not know. The object of urban planning, expropriation and demolition is the property of the demolished person, but before the competent authority makes a formal decision, it rarely publicly lets the demolished person know and participate in advance, and only announces or notifies the public when the behavior is finally decided. The demolished person often knows the final fate of his property at the last minute. The demolished person cannot know the relevant information of the government's decision-making in advance, and it is difficult to reflect his will and demands in the decision-making. The black-box operation in the decision-making is inevitable, and the rights and interests of the demolished person are in a situation of being slaughtered.
Second, the public participation mechanism is absent and the hearing system is missing. "Participation is the core of equality". Only the right and opportunity to participate can reflect the equality of status and ensure that the demolished people have the basis to confront or restrain the arbitrariness and arbitrariness of the administrative subject. However, in the face of the problem of public participation, Article 9 of the "Demolition Regulations" only stipulates that "the housing demolition management department and the demolition people should do a good job of propaganda and explanation to the demolished people in time", the general citizen is regarded as the object of "appeasement", and there is no corresponding hearing procedure and system. General psychology holds that people usually pay more attention to how an entity's goal is achieved and how they are actually treated in the process of achieving that goal than to the goal itself. "If the parties feel that the procedures used to reach the judgment are unfair, they are unlikely to accept the judgment of their dispute, whether psychologically or in action."[4]Looking back on many cases of nail households, ordinary citizens are not opposed to the promotion of public welfare by urban re-planning, but are dissatisfied with the opaque formulation process of urban planning and compensation plans, and reasonable opinions have not been respected. In the case of exhaustion of relief channels such as consultation with the demolishers and petitions, the "nail house" method has become the only means for them to "discuss" to fight. Although there is a major breakthrough in the "working rules for Administrative adjudication of Urban Housing demolition" issued by the Ministry of Construction in 2004, which stipulates that "the administrative department of housing demolition shall conduct a hearing when applying for administrative compulsory demolition", there is no corresponding procedure to match it. in addition, the hearing organ itself is not neutral, the whole hearing process lacks transparency, and the good vision does not play its due role.
Third, the demolition of the lack of judicial relief. Judicial relief is undoubtedly the most important means for the rights and interests of the demolished person to obtain relief. However, the Supreme People's Court's Reply on Whether the People's Court Should Accept Civil Litigation for Compensation and Resettlement Disputes if the Parties Can't Reach the Agreement on Compensation and Resettlement stipulates that from August 11, 2005, the national courts will no longer accept civil lawsuits filed by both parties on the resettlement compensation dispute, that is to say, the demolished person cannot sue the demolition person for compensation dispute, you can only apply to the relevant department for a ruling in accordance with Article 16 of the "Demolition Regulations". If you are not satisfied with the ruling, you can file an administrative lawsuit and sue the ruling agency. Therefore, the price of the house of the demolished person is determined by the government department, not through equal civil negotiation, and judicial relief cannot be sought. The loss of public remedies means that the right holder can only "defend his rights" by means of private remedies ". This is not only a great contempt for judicial authority, but also an objective increase in social instability.
(IV) demolition compensation standard is not clear, the lack of "reasonable compensation" procedural guarantee mechanism
Compensation is the key link in the demolition, the conflicts and disputes in the demolition are mostly caused by dissatisfaction with the amount of compensation. The law of our country stipulates that "reasonable" compensation is the principle, but there is no corresponding regulation on what is "reasonable", which leads to the low amount of compensation in the actual demolition. Fair, adequate, reasonable and timely compensation is the basic requirement of all countries. For example, the 5th Amendment of the United States Constitution stipulates that "no one shall be deprived of life, liberty or property without due process of law, and private property shall not be expropriated for public use without fair compensation". How to achieve the standard of compensation should be guaranteed through the corresponding procedures.
2.5Lack of corresponding procedural norms for demolition due to "public interest"
The current "Demolition Regulations" and local regulations do not distinguish whether demolition belongs to "public interest" expropriation and regulate different demolition procedures, confusing public welfare demolition and commercial demolition, resulting in commercial demolition taking a free ride in public interest expropriation.
Legislative Suggestions 3. Improving China's Housing Demolition Procedures
(I) rationalize the relationship between expropriation, compensation and demolition, and insist on the procedure of first compensation, then expropriation and final demolition.
As mentioned earlier, for the demolition of the houses of units and individuals, the houses must be expropriated in accordance with the law, but the "Demolition Regulations" authorize the house demolition management department to grant the demolition permit to the demolition person without expropriation in accordance with the law. The legislation should clearly stipulate that the real estate of units and individuals shall be expropriated on the premise of compensation to the demolished according to the market value, and then enter the demolition procedure.
(II) procedure for determining the definition of public interest
Public interest is a very important concept in demolition activities. It is a prerequisite for defining the legality of government expropriation and expropriation, but it is difficult to form a unified opinion on it.[2](P503)Because the concept of public interest is relative in substance. It is shown that the main body of public interest is diverse. What can represent public interest can not only be the government that people are used to, but also various social autonomous organizations and volunteer organizations outside the government; it can be public ownership or non-public nature. Organizations; can be non-profit organizations or profit organizations. Secondly, the government representative subject of public interest is hierarchical, and the public interest can be represented by the central or federal government of a country, or by local governments at all levels or even its dispatched agencies (or organs); there are not only the public interest representative subject in the national sense that people are familiar with, but also the representative subject of transnational or even global public interest. Finally, the public interest itself is variable or uncertain in nature. A social affair that is completely regarded as a public interest at this time may be treated as an impure public affair at that time, such as education, environmental protection, public safety, etc., which is both a pure public affair and may be completely private. Means and strategies to deal with, such as urban rail transit management, professional intermediary, social security, etc. Based on the above analysis, in real social life, from the perspective of the entity (subject, power boundaries, goals and results) to identify whether an interest is public, whether it should be treated as a public problem is often very complex, difficult task, or even difficult to have an absolutely optimal answer to the proposition. Therefore, in the absence of substantive rules of administrative law or the substantive rules of administrative law do not meet the needs of society, it is entirely possible to achieve the purpose of control and rationalization of administration through the "negotiation" procedure of listening to the opinions of the counterpart.
First, publicly. Includes:(1) Legal Disclosure. All laws, administrative regulations, local regulations, rules and general normative documents related to the rights and interests of the demolished shall be made public to the whole society. (2) Information disclosure. The demolition announcement issued before the demolition, the purpose, scope, compensation standards and a series of information that are of interest to the demolished person, such as the purpose, scope, and compensation standards of the demolition, are released in advance, and the opinions of the demolition person are notified and solicited. (3) The process and results of demolition must be made public.
Second, participation. Habermas believes that in the era of "post-metaphysics" when natural law and revelatory religion are no longer generally accepted, the only basis for proving the legitimacy and validity of law is rational and democratic procedures that meet the requirements of dialogue theory.[6]Due to the difficulty, variability, subjectivity and the wide range of subjects involved in the definition of public interests, it is unfair for the administrative organ to decide whether a certain land acquisition or demolition activity belongs to public welfare. Therefore, the potential stakeholders of demolition must be involved in the process of land acquisition or demolition motion and demonstration to reach the most reasonable level of definition of public interests.
Third, the role of the court. For uncertain legal concepts such as public interest, the determination of administrative agencies should not be the final decision. Although the government has certain discretion on whether a certain demolition belongs to public interest, as the American judge Frank Ford said: "Discretion, if there is no standard for exercising this power, is the recognition of autocracy."[①]Therefore, in addition to the supervision of the government's public interest determination through the participation of the demolished person in the demolition procedure, the court, as the final legal guarantee, should enjoy the right of judicial review.
Specifically, the following procedures can be adopted to determine whether a demolition project belongs to public welfare: first, the government should first make a general judgment on whether a project belongs to public interest, and then issue construction opinions to the society. disclose the name of the construction project, the planned building site, area, use, the proposed demolition and resettlement plan, the qualification of the developer, and so on. Secondly, during the announcement period to solicit the views of the community, invite relevant people to participate in the hearing. The various points of view are debated in accordance with open public proceedings, with the result being produced in accordance with a specific voting procedure or a adjudicatory procedure that is actionable.
(III) improve the procedural rights of the demolished and protect the legitimate interests of the demolished
Some experts pointed out: "the poverty of a person or a social group is generally caused by two types of reasons: one is the lack of their resources (capital, land and education level), and the other is that they do not enjoy the same equal rights as others." In order to change the weak legal status of the demolished person, the rights that the demolished person should enjoy as an administrative counterpart should be increased, mainly including:(1) the right to request, the right to request the administrative department to make certain actions. Such as requesting the disclosure of information on the basic land price of the house, making public or announcing the demolition policy and demolition information in advance. (2) The right to participate. (3) The right to know. Among them, the "situation" mainly includes: first, the situation related to the setting of demolition permit; second, the situation related to the change of demolition behavior, including the reasons for cancellation, change, withdrawal, compensation, etc.; third, the relevant situation of the demolition person, including the qualification of the demolition person, the amount of compensation for demolition and relocation, and whether it is in place; fourth, the relief method, in different stages of demolition, the means by which relief can be obtained, etc. (4) The right of due process, that is, the right of the demolished person to obtain the content of the behavior, the basis and reason of the behavior, to state and defend to the administrative authority, and to obtain the corresponding relief channels. (5) The right to criticize and make suggestions to the administrative department and its staff. (6) The right to appeal, accuse and report unfair administrative acts made by the administrative department and its staff. (7) The right to obtain the right to remedy, that is, when the rights and interests of the demolished person are damaged, the right to request a remedy or to punish the infringement. This is the most powerful means to regulate government misconduct, and it is also the last way to protect the rights and interests of the demolished. The rights of the demolished person to obtain rights relief mainly include: ① apply for administrative reconsideration for the issued house demolition permit, the qualification review of the demolition unit, administrative punishment, the approval of the project before the demolition and the issuance of the state-owned land use right certificate. ② filing administrative proceedings. ③ Apply for state compensation for losses caused by illegal demolition administrative acts, and have the right to compensation for the early recovery of state-owned land use rights.
(IV) Improve the Due Process of Law in Demolition and Relocation and Improve the Effectiveness of Hearing System
In many cases, as long as a procedure for the distribution or resolution of a dispute appears to all parties to be fair, their level of satisfaction will increase, even if it does not increase the substantive interest in the distribution or resolution of justice. The bad law with due process is still more worth pursuing than the good law that is improper or even without due process. Based on this, we have reason to infer that when the legal procedures for expropriation are open and transparent, and when all interested parties can fully participate in the various steps of expropriation, the probability of "nail households" will be reduced, and the social tensions caused by them will also be gradually reduced. reduce. Therefore, the hearing system should be gradually improved in the demolition procedure: changing the hearing into a pre-hearing (moving forward the hearing time); changing the arbitrary hearing into a necessary hearing (improving the status of the hearing); and changing the hearing into a substantive hearing (expanding the content of the hearing).
Drawing on the experience of the United States, the author believes that the proper procedure should be:(1) the government issues a notice of land expropriation in advance;(2) the government evaluates the land;(3) sends the evaluation report to the expropriated party and makes an offer of compensation, and the expropriated party can make a counter offer;(4) holds a hearing. The hearing procedure in the process of land acquisition shall be added to explain the necessity and legality of land acquisition.[7]If both parties agree to the demolition and cannot reach an agreement on compensation, they can hire an appraiser to evaluate the assets of the demolished house and request a notary public to notarize it. After that, the two sides will negotiate, and if they still cannot resolve it, they will have to enter the judicial process. (5) Enter the demolition procedure, issue the demolition announcement, and hold a hearing before issuing the demolition permit to demonstrate the necessity and feasibility of the demolition.
(V) improve the compensation procedure and define the content of "reasonable compensation" by procedure.
The author believes that the following procedures should be followed when determining the reasonable compensation standard:(1) the principle of fairness, adequacy, reasonableness and timeliness as compensation. (2) Expand the object of compensation: including the state-owned land use right where the house is located, the real estate itself, as well as the appendages of the real estate, and the operating loss of the real estate. Under normal circumstances, most of the demolished houses are located in the prime areas of the city, and there are more operating houses. The future income of the demolished houses is the expected income of the demolished people. After the house is demolished, the economic losses suffered by the demolished person should also include the expected income of the demolished person. (3) An equal amount of property receives an equal price on the basis of market standards as reasonable compensation. Monetary compensation is preferred, followed by physical placement. (4) The determination of the price of the market is first of all that the parties can reach an agreement on the compensation price, and when the agreement is not possible, choose the housing price assessment agency to evaluate the housing price. In the housing price assessment, we should first ensure the independence and marketization of the assessment subject. Allow housing price assessment agencies to conduct assessments autonomously. Secondly, the use of market-oriented and scientific valuation standards and methods. The housing price assessment agency takes into account various factors affecting housing prices and determines them based on current market prices.
(VI) increase procedures for demolition for commercial interests
The procedure for demolition by commercial interest shall be when:
(1) The developer shall declare the project construction plan to the relevant government departments, and clarify the proposed construction project, planning map, region, floor area, etc.
(2) The government department shall hold a hearing to organize the interested parties in the proposed land acquisition area to participate in the demonstration of the necessity and feasibility of the project.
(3) After the project is approved, the developer obtains the "Construction Planning Permit for a Project" from the government department, but does not obtain the land use right at this time.
(4) The developer shall independently negotiate the compensation and resettlement matters during the demolition with the "Construction Planning Permit", compensate according to the market price, sign a compensation and resettlement agreement, and obtain the land use right of the demolished person.
(5) After the demolition reaches the proportion of independent negotiation limited by the government, the compensation and resettlement plan for the remaining demolished persons will be submitted to the government demolition department for review. At the same time, can apply to the relevant government demolition department for compulsory demolition. Before applying to the government demolition department for compulsory demolition, the proportion that must be reached shall be negotiated independently. The proportion shall be determined according to the nature of the development project and the impact on the city, and shall generally be controlled at more than 85%. At the same time, the demolition department appointed a supervision team to supervise the possible violent demolition in the demolition.
(6) After all the demolition work is completed, report to the relevant government departments to apply for the land use right certificate, and at the same time report all the demolition agreements to the government demolition department for the record.
Conclusion
As the only administrative regulation regulating the demolition of urban housing in China, the violation of due process has attracted great attention from scholars and all walks of life. On December 7, 2009, five scholars from Peking University Law School advised the National People's Congress that the "Demolition Regulations" conflicted with the Constitutional Property Law and suggested that the legislature review them. The Legislative Affairs Office of the State Council has also solicited expert opinions on the draft regulations on compensation for the expropriation and demolition of houses on state-owned land, which is intended to replace the regulations on demolition. We look forward to the legislative standardization and gradual improvement of the demolition procedure.
References:
[1]The constant demolition incidents around the world draw attention to how to get out of the legal dilemma [DB/OL],http://unn.people.com.cn/GB/14748/10598627.html,2009-12-17
[2]Yang Yin, Procedural Consideration of Public Interest [C], Chinese Administrative Law after Constitutional Amendment, Beijing: China University of Political Science and Law Press, 2005.
[3]Feng Yang. How to determine the "public interest" in property expropriation, constitutional law and administrative law [M],2006(1).
[4]Sun Xiaoxia. Juridical theory of procedure [M]. Beijing: The Commercial Press, 2005.94-95.
[5] [US] Michael Bayless. Translated by Deng Haiping. Procedural Justice-Distribution to Individuals [M]. Beijing: Higher Education Press, 2005.65.
[6]Habermas. The Theory of Communicative Behavior [C], Translated by Hong Peiyu and Li Qing, Volume I, Administrative Rationalization and Social Rationalization, Volume II, Critique of Functionalist Reason, Chongqing: Chongqing Publishing House, 1994.225.
[7]Liu Hong. Property law experts in the United States talk about the phenomenon of "nail households" in China [N]. Reference News, 2007-03-29(14).
[①]Brown v. Alain 334 United States 443,at 496(1952)
(This article won the second prize of 2010 Jinan excellent lawyer paper)
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