Some opinions and suggestions on the legislation of real estate expropriation in China

[Abstract] The "Property Law" has been implemented for nearly two years, but because my country's real estate legislation faces at least four difficulties, it has not yet issued a specific law to regulate real estate expropriation. The author analyzes the current legal system of real estate expropriation in our country and thinks that there are serious defects in the current legal system of real estate expropriation, that is, some existing laws and regulations do not distinguish between expropriation and expropriation, the lower law and the upper law conflict, the imperfection of real estate expropriation procedure, the lack of judicial relief channels for real estate expropriation, local offside legislation, repeated legislation, etc, and from the real estate expropriation of the legislative body, basic issues, procedures, local legislation, urban and rural planning management and other aspects of China's real estate expropriation legislation put forward a number of recommendations, with a view to China's establishment of a sound legal system of real estate expropriation benefit.

[Subject Words] Real Estate Expropriation Legislation

The "Property Law" came into effect on October 1, 2007. The provisions of the law on the expropriation of real estate are a concrete manifestation of the third paragraph of Article 10 of the Constitution and a major progress in my country's real estate expropriation legislation. Nevertheless, the relevant provisions of the Property Law on the expropriation of real estate are still in principle. In order to strictly regulate the procedures of real estate expropriation, strictly enforce the rules of compensation for real estate expropriation, and prevent the improper interference and infringement of administrative power on citizens' private property rights, my country also needs Legislation on specific content such as real estate expropriation procedures.

In fact, both the theoretical and practical circles have a general consensus on the necessity and urgency of real estate expropriation legislation. They all call for speeding up my country's real estate expropriation legislation and promulgating specific laws regulating real estate expropriation as soon as possible. Some scholars have drafted The draft of the National Expropriation and Expropriation Law, but the "Property Law" has been implemented for nearly two years, and there has been no specific law regulating real estate expropriation, there are also no amendments to the existing regulations such as the Urban Housing Demolition Regulations. The author tries to analyze the real dilemma of China's real estate legislation, and in view of the defects of the current legal system of real estate expropriation in China, in order to establish a perfect legal system of real estate expropriation, put forward a number of legislative opinions and suggestions, with a view to throwing bricks and jade.

1. The Realistic Dilemma of China's Real Estate Expropriation Legislation under the Framework of Property Law

Some scholars believe that in order to implement the provisions of articles 42 and 44 of the property law on expropriation and requisition system, it is necessary to formulate the law on expropriation and requisition as soon as possible. Due to the complex content of the law on expropriation and requisition, it is difficult to issue it objectively. [1] But where is the difficulty. The author believes that under the framework of the Property Law, the realistic dilemma of my country's real estate expropriation legislation has at least the following aspects:

1. The legislative value orientation of real estate expropriation is not clear.

The value of legislation usually refers to the interrelationship between the needs of the legislative subject and the object of legislation (the object to be adjusted by the law), which is manifested in the moral code and interests that the legislative subject pursues through legislative activities. The so-called legislative subject refers to all the people within the scope of the effectiveness of legislative power, especially their legislative representatives. What the legislator, as the representative of all the people, seeks to achieve is not only the inherent lofty moral norms of legislation-justice, fairness, etc., but also the external form of legislative interests. This combination of justice and interests constitutes two inseparable aspects of the value of modern legislation. [2] The author believes that the legislative value of real estate expropriation also contains two aspects of justice and interests, but the legislation of real estate expropriation is the same as other specific laws and legislation. What it should pursue is concrete, not only abstract justice and interests, but also It should reflect the legislative value in specific legal provisions. We should think about the economic and social development of our country today, what value orientation of real estate expropriation law should be formulated. However, at present, few people have studied and discussed such a fundamental problem, let alone formed a mainstream view.

Real estate expropriation is a restriction on private real estate ownership, but this restriction on private real estate ownership should be subject to strict legal conditions and should be strictly restricted and regulated. The reason why the people place extraordinary attention and high hopes on the "Property Law" that real estate expropriation can only be based on the "needs of public interests". The important reason is the awakening and improvement of the people's awareness of "private rights", which is the expropriation of real estate in my country., Demolition is a strong response to the irregularities and even infringement of the legitimate rights and interests of private real estate. The claim of rights is at the same time an obligation to the collective." [3] Therefore, the author believes that the legislative value orientation of China's real estate expropriation should be based on China's actual national conditions, should adapt to the actual needs of China's economic and social development, and should promote the harmonious development of Chinese society; we should formulate strict and open, Effective expropriation procedures, clear and fair, timely and sufficient expropriation compensation, and real estate expropriation laws that reflect respect and protection of private real estate ownership, realize the procedural justice and entity interest value of real estate expropriation.

2. The management of real estate expropriation involves multiple competent departments, and it is difficult to integrate and coordinate the competent departments of real estate expropriation.

At present, China's real estate expropriation management involves a number of government departments, according to the current "Land Management Law", "Urban Real Estate Management Law", "Grassland Law", "Forest Law", "Fisheries Law" and other relevant provisions of the law, the competent departments of land, houses, forests, woodlands, grasslands, water surfaces, tidal flats and other real estate include land and resources departments, construction administrative departments, forestry departments, agriculture departments, fishery departments, and so on. The corresponding real estate expropriation is also examined, approved and managed by the corresponding competent departments [4]. How to integrate and coordinate the departments in charge of real estate expropriation is one of the difficulties faced by real estate expropriation legislation.

3. There are many interest groups involved in real estate expropriation, and it is difficult to balance the interests of all parties.

It can be said that the subject of interest involved in real estate expropriation may be each of us, which is related to the vital interests of each of us. In the case of the implementation of real estate expropriation, how to balance the rights and interests of individuals and social public interests is indeed not a simple problem in legislation. Moreover, in practice, real estate expropriation involves not only the ownership of real estate, but also a variety of rights attached to the ownership of real estate, including land, grassland, forest land contractual management rights, easement rights, mortgage rights, housing lease use rights, etc., in the expropriation of real estate, How to treat all stakeholders fairly and reasonably is also a problem that needs to be analyzed and solved in legislation. Behind the expropriation of real estate, it also involves the game of multi-interest groups and vested interests, so it may be very difficult to coordinate and balance the interests of all parties.

4. The legal issues involved in the expropriation of real estate are controversial and have not yet formed a basic conclusion.

The dispute over the legal issue of real estate expropriation has not been settled with the promulgation and implementation of the property Law. On the contrary, the debate on real estate expropriation has not stopped, and the views of all parties are different. In particular, some major issues on real estate expropriation seem to have not yet been concluded. For example, with regard to the definition of "public interest", most theoretical circles think that it is impossible to accurately stipulate the connotation and extension of "public interest" in legislation, while most practical circles think that the connotation and extension of "public interest" should be made clear and specific in legislation. Provisions to prevent the expropriation of real estate in the name of "public interest" and infringe upon the legitimate rights of individuals. Another example is the definition of the transfer time of the real right of the expropriated real estate. Some scholars believe that the entry into force mentioned in Article 28 of the Property Law has its specific meaning. It refers to the effect of the change of real right. Therefore, after the expropriation compensation is completed, the expropriated person does not file an administrative reconsideration or lawsuit on the expropriation decision, or the original expropriation decision is maintained after a lawsuit or administrative reconsideration is filed, only then can the expropriation order be considered to be effective,[5] but a different view has been expressed. There are also questions about whether the object of real estate expropriation refers only to the ownership of real estate, and if the object of expropriation refers only to the ownership of real estate, how can other relevant rights attached to the ownership of the expropriated real estate be protected or compensated in the expropriation process? Questions about the specific procedures and remedies for real estate expropriation are controversial in both theoretical and practical circles.

2. the defects of the current legal system of real estate expropriation in China.

1. There are still some existing laws and regulations that do not distinguish between expropriation and expropriation.

The Property Law clearly distinguishes between expropriation and expropriation, but the provisions of the current relevant laws and regulations are obviously lagging behind, such as Articles 23, 25 and 26 of the Regulations on the Implementation of the Land Administration Law (Decree No. 256 of the State Council of 1998), Article 38 of the Grassland Law (amended in 2002), Article 16 of the Regulations on the Implementation of the Forest Law (Decree No. 278 of the State Council of 2000), and Article 14 of the Fisheries Law (amended in 2004), the expression "expropriation" is still used.

2. The current relevant laws and regulations are not connected with the provisions of the "Property Law" on the expropriation of real estate, and the lower law and the upper law contradict and conflict.

We have noticed that after the promulgation of the property Law, the standing Committee of the National people's Congress amended the Urban Real Estate Management Law. Article 6 of the Urban Real Estate Management Law (amended in 2007) stipulates: "for the needs of the public interest, the state may expropriate the houses of units and individuals on state-owned land and give compensation for demolition in accordance with the law to safeguard the legitimate rights and interests of the expropriated person, the living conditions of the expropriated persons should also be guaranteed. The specific measures shall be formulated by the State Council." However, the "Regulations on the Administration of Urban Housing Demolition", which is the lower law of the "Urban Real Estate Management Law", has not been amended accordingly. In fact, the Regulations on the Administration of Urban House Demolition and Relocation are inconsistent and inconsistent with the provisions of the Property Law and the Urban Management Law in many aspects, such as the definition of the nature of demolition and expropriation, and the inconsistency between the subject of demolition and expropriation. According to the provisions of Article 87 and Article 88 of the Legislative Law, the competent authority shall change or revoke it in time.

3. There are serious defects and deficiencies in the real estate expropriation procedures stipulated by the current relevant laws and regulations.

The current "Land Management Law" and "Land Management Law Implementation Regulations" have made some provisions on the procedures for the expropriation of rural collective land. Compared with other laws and regulations on real estate expropriation, they are relatively specific, while other relevant laws and regulations lack specific procedures. The Land Management Law and the Regulations on the Implementation of the Land Management Law stipulate that my country's land acquisition approval power and agricultural land conversion approval power are concentrated in the State Council and the provincial government. The county and city people's governments only have the enforcement power. The land acquisition process includes four stages. That is, the construction unit applies, draws up a compensation plan, the government approves the plan, and allocates and issues certificates. However, there are obvious defects and shortcomings in the land expropriation procedure in China:(1) the legality review of the purpose of land expropriation is not included in the procedure. The public interest is not guaranteed in the procedure, there is no special review of the legality of the purpose of land acquisition in the approval procedure, and there is no special explanation of the legality of the purpose of land acquisition in the land acquisition announcement. (2) Lack of supervision mechanism for administrative organs. China's administrative organs are not only the decider of land expropriation, but also the executor, which is in an absolutely dominant position, but China's current land legislation does not provide for the necessary supervision mechanism. (3) The transparency and publicity of land expropriation procedures are not enough. For example, in the determination of the compensation plan, it is approved and implemented by the government itself. It is difficult to guarantee the publicity of the expropriation procedure, and it is difficult to avoid the occurrence of black-box operations, so it is difficult to ensure that the interests of the expropriated are fairly protected. (4) The expropriated lack of opportunities to express their opinions in the process of land expropriation. In the whole process of land expropriation, the expropriated are in a relatively passive situation, and the expropriated land has no opportunity to express their opinions in terms of the purpose of expropriation and the scope of expropriation. [6]

4. The current relevant laws and regulations lack specific provisions on judicial remedies for the expropriation of real estate.

According to the provisions of the Land Administration Law and the regulations on the implementation of the Land Administration Law, if there is a dispute over the compensation standard for land expropriation, it shall be coordinated by the local people's government at or above the county level; if the coordination fails, the people's government that approved the land expropriation shall make a ruling, but it does not stipulate its right to obtain relief from the judicial organs. The first item of Article 8 of the "Working Regulations on Administrative Adjudication of Urban House Demolition" (Jian Housing [2003] No. 252) also clearly stipulates that administrative adjudication on the legality of demolition permits shall not be accepted. The reply of the Supreme People's Court on whether the people's court should accept the civil lawsuit for compensation and resettlement disputes if the parties fail to reach the agreement on compensation and resettlement for demolition and resettlement promulgated and implemented on July 4, 2005 also clearly stipulates: "if the demolition person fails to reach an agreement on compensation and resettlement with the people's court, the people's court will not accept the civil lawsuit for compensation and resettlement disputes, and inform the parties concerned that they can apply to the relevant departments for a ruling in accordance with Article 16 of the regulations on the Administration of Urban Housing demolition." However, the "Administrative Reconsideration Law" and "Administrative Litigation Law" have no clear provisions on administrative reconsideration and administrative litigation for disputes such as real estate expropriation decisions and real estate expropriation compensation.

5. The local legislation on real estate expropriation has serious problems of offside legislation and duplicate legislation.

In accordance with the provisions of Articles 8 and 9 of the Legislative Law, local people's congresses, their standing committees, and local governments have no right to formulate local regulations or local government rules on the expropriation of real estate. They can only be based on Article 64 of the Legislative Law. The provisions of Article 73, in order to implement the provisions of real estate expropriation laws and administrative regulations, make specific provisions such as local standards for expropriation compensation according to the actual conditions of the administrative region. However, at present, some places in our country have violated these basic provisions of the "Legislative Law" for real estate expropriation legislation, and some places have offside legislation and repeated legislation. For example, the Regulations on the Administration of Urban Housing Demolition only authorizes the people's governments of provinces, autonomous regions and municipalities directly under the Central Government to stipulate the specific methods for the assessment of demolished houses, the standards of relocation subsidies and temporary resettlement subsidies, while the Regulations on the Administration of Urban Housing Demolition in Shandong Province and the Measures for the Administration of Urban Housing Demolition in Jinan City not only repeat the relevant provisions of the Urban Real Estate Management Law (many repetitive provisions are completely unnecessary), it also breaks through the "Regulations on the Administration of Urban Housing Demolition" and makes some provisions (for example, Article 14 of the "Regulations on the Administration of Urban Housing Demolition in Shandong Province" stipulates that the demolisher shall pay the demolition management fee in accordance with the demolition scope and demolition period of the demolition permit, while the "Regulations on the Administration of Urban Housing Demolition" do not stipulate that the demolisher shall pay the demolition management fee). Another example is the "Interim Measures for the Unified Acquisition of Land in Jinan City" (Order No. 204 of the Jinan Municipal Government in 2003), which stipulates that "the expropriation of land referred to in these Measures refers to the state for the public interest and the needs of the implementation of the plan, in accordance with the prescribed procedures and approval authority, in accordance with the law The act of compensating rural collective economic organizations and farmers and requisitioning land collectively owned by farmers as state-owned land." It clearly goes beyond the provisions of Article 2 of the Land Management Law.

Some specific suggestions 3. the legislation of real estate expropriation in China under the framework of the Property Law

1, choose the best real estate expropriation legislation.

At present, my country's laws and regulations on real estate expropriation are scattered in the "Land Management Law", "Urban Real Estate Management Law" and other separate laws, and the current laws and regulations on real estate expropriation have major defects. Considering that civil law countries generally have special legislation on real estate expropriation, such as the French Public Expropriation Law, the author thinks that it is only expedient for our country to adopt the legislative style of dispersing the real estate expropriation into the relevant separate laws. In order to establish a perfect legal system of real estate expropriation, we should formulate special separate laws on real estate expropriation. Moreover, in view of the commonness, difference and connection between expropriation and expropriation [7], the author agrees with the formulation of the National Expropriation and Expropriation Law for the expropriation of real estate and property expropriation, as a single law to uniformly regulate the expropriation of real estate (including property expropriation) in China. At the same time, certain special matters that may be levied on immovable property may also be provided for in other separate laws,[8] but the scope and level of effect of the provisions of other separate laws on immovable property expropriation should be strictly limited.

2, clear and accurate definition of real estate expropriation of a number of basic issues.

(1) Subject of expropriation and subject of expropriation

The subject of real estate expropriation is the state, and only the state can use public power to intervene in collective or private property, or even transfer it to the state. In addition to the state, any organization and individual do not enjoy public power, and therefore do not enjoy the right to expropriation. [9] The right to expropriate real estate belongs to the right to exercise, and the State Council is the highest administrative organ of our country. Therefore, the State Council should exercise the right of expropriation on behalf of the state. In accordance with the relevant provisions of the current Land Administration Law, the approval authority for expropriation can be determined as the State Council and the provincial governments, and the county and city people's governments have only the executive power.

The author believes that it is narrow and one-sided to limit the subject of expropriation in my country to the owner of the expropriated real estate. The right holders who enjoy the legal possession, use and income of the expropriated real estate have suffered varying degrees of losses due to the expropriation. All should be compensated for expropriation. Therefore, the right holders who enjoy the legal possession, use and income of the expropriated real estate are the subjects of expropriation. In the case of expropriation of rural collectively-owned land, rural village collective organizations and collective land contract managers are the subjects to be expropriated [10], and the owners and contractors of grasslands, beaches, forests, woodlands, waters, etc. owned by rural collectives All operators should also be the subject of expropriation and enjoy the right to compensation for expropriation. In the case of expropriation of urban houses, some experts believe that Article 148 of the property Law stipulates that there is no problem of expropriation of the right to the use of state-owned construction land, but only the problem of early recovery. If there are houses on the land, the houses should be expropriated at the same time as the right to use construction land is recovered in advance [11]. The author thinks that this view is wrong, and this view is likely to have a great adverse impact or even negative effect in the process of urban housing expropriation in the future. First of all, the right to contracted management of rural collective land and the right to use state-owned construction land are usufructuary rights, not ownership, and compensation should be levied on collective land contractors, and compensation should also be levied on the right to use state-owned construction land; secondly, the value of the right to use state-owned construction land cannot be measured only by the transfer fee, for example, the transfer fee of a certain state-owned construction land use right was only 100000/mu ten years ago, however, the market value of the state-owned construction land use right of the parcel may reach 1 million/mu after 10 years. If the right to use the parcel is recovered in advance and only the corresponding transfer fee is refunded, it is extremely unfair to the land use right holder! Thirdly, if the expropriation of urban houses does not include the right to use state-owned construction land within the scope of housing occupation, and only the above-ground houses are expropriated, then the value of the expropriated houses will be greatly reduced, which is also extremely unfair to the owners of the houses! Therefore, the author believes that the owner of the right to use state-owned construction land is also the subject of expropriation. In addition, the legal tenant of urban housing should also be the subject of expropriation.

(2) the object of collection

Examining foreign legislation, such as the French Public Collection Act, the object of expropriation is not only the physical ownership of real estate, but also the rights related to real estate, such as the right to use, the right of residence, the right of easement (active easement and negative easement), etc., including not only private ownership, but also the real estate in the public domain such as national education. Including not only ownership and its appendages, but also real estate underground and above ground space. [12] the author thinks that it can be used for reference, and based on the above analysis of the subject to be expropriated, the author believes that the object of real estate expropriation in China includes not only the ownership of real estate, but also the relevant rights attached to the ownership of real estate and having the functions of legal possession, use and income, such as the right to contract management of collective land, the right to use state-owned construction land, the right to rent of urban housing, and so on.

(3) Preconditions for collection

"For the needs of the public interest" is a prerequisite for the expropriation of real estate. The "Property Law" does not clearly define the connotation and scope of public interest. Experts and institutions involved in legislation believe that public interest cannot be accurately defined. It seems that defining "public interest" is an "impossible task" in legislation ". There are also deviations and misunderstandings in the public's understanding of "public interest". For example, it is believed that "public interest" and "commercial interest" are completely contradictory. Some experts also suggest that public interest should be defined by judicial review.

The author believes that public interest is relative to "private interest". "Commercial interest" is not a legal concept and cannot be completely equated with "private interest", nor can "commercial interest" be completely opposed to "public interest". It is indeed difficult to define "public interest" in legislation, but from the perspective of civil law theory, although "public interest" is an "uncertain concept", what is uncertain is only its "scope" ("extension"), and its "meaning" ("connotation") is definite and clear. According to the general theory of civil law, the so-called "public interest" refers to the benefits that all members of society can directly enjoy. [13] Therefore, the basic connotation of "public interest" should be clearly defined in China's real estate expropriation legislation; at the same time, the administrative and judicial review mechanism of "public interest" should be established to review and define the "public interest" of specific cases, this review mechanism should include the review of the "public interest" in the real estate expropriation decision procedure, and the administrative reconsideration and administrative litigation initiated by the expropriated subject on whether the expropriation decision has the "public interest" conditions.

(4) Compensation for expropriation

The author believes that in accordance with the relevant provisions of the Property Law, the concept of compensation for real estate expropriation in my country should be comprehensively updated, and a fair, fair and open real estate expropriation compensation system should be established:

First, the "full payment" of land acquisition compensation should be specifically implemented. The author believes that the "full payment" of land compensation fees stipulated in the Property Law embodies the principle of "full compensation" [14]. The current "Land Management Law" and "Land Management Law Implementation Regulations" stipulate that compensation shall be given in accordance with the original use of the expropriated land. The compensation is too low and loses its scientific nature. Moreover, according to the theory of differential land rent, not only does it not include the value-added part of the land, but even The market price of the expropriated land is not reflected,[15] should be revised accordingly. At present, relevant localities have made some adjustments to the compensation standards for land acquisition. For example, the General Office of the Shandong Provincial Government "Notice on the Implementation of the Comprehensive Land Price Standards for Land Acquisition Areas" (Lu Zheng Ban Fa [2009] No. 20) stipulates that it has changed the previous average per mu The method of calculating land acquisition compensation multiplied by the legal multiple, through unified division pricing, to achieve "same land and same price", [16] but whether there is a positive effect remains to be a positive effect.

Second, the rights of expropriated subjects to compensation for land expropriation should be clarified. The provisions of Article 24 of the Interpretation of the Supreme People's Court on the Application of Law in the Trial of Cases Involving Rural Land Contract Disputes (Fashi [2005] No. 6) should be referred to to change the provisions of "land compensation fees shall be owned by rural collective economic organizations", and clearly stipulate that rural collective economic organizations, villagers' committees and villagers' groups may follow the democratic negotiation procedures stipulated by law, it is decided that the land compensation fees already received shall be distributed within the collective economic organization, and those who already have the membership of the collective economic organization when the land acquisition compensation and resettlement plan is determined shall be entitled to the corresponding share of land compensation fees.

Third, it is necessary to specifically implement and solve the social security problems of land-lost farmers and ensure the livelihood of land-lost farmers. After the expropriation of rural collective land, farmers have lost the material foundation on which they depend for production and life. Therefore, the state has the obligation to take necessary measures to ensure the basic livelihood of land-lost farmers. It should provide basic social security such as pension, medical care and housing for land-lost farmers, and provide necessary conditions for land-lost farmers to change their production and management mode. At present, some places have some more specific policies and regulations (such as the "Interim Measures for the Employment and Social Security of Farmers on Expropriated (Used) Land in Nanchang City" Hongfu Office [2006] No. 123), which can summarize the specific practices of relevant places And experience, form a relatively complete and standardized system.

Fourth, it is necessary to clarify that the compensation for urban housing expropriation includes the market value of the right to use state-owned construction land. Is the compensation for the expropriation of urban houses "to make up the house but not to make up the land"? In practice, a large number of disputes have occurred on this issue, but the current laws and regulations have not made clear provisions on this, which seems to be deliberately avoided. The author believes that the expropriation compensation for urban housing should certainly be both "housing" and "land", and the common value of the right to use state-owned construction land and the above-ground buildings within the scope of urban housing occupation should be clearly defined to constitute the complete value of urban housing, which should be as stated in this article when discussing the subject of expropriation, article 148 of the Property Law stipulates that it is not enough to refund the corresponding land transfer fee to the state-owned construction land use right holder, and the full amount shall be paid according to the market evaluation value of the state-owned construction land use right and the above-ground buildings at the time of expropriation. Expropriation compensation.

Fifth, it is necessary to effectively solve the serious problem of non-neutral and inaccurate assessment in urban housing expropriation compensation. Some experts pointed out that in the assessment of urban housing demolition, because developers are not willing to compensate according to the housing market price, most of the housing prices assessed by appraisers are lower than the market price, and "none of the 100 assessment reports read is genuine". [17] The root cause of this serious problem lies in the fact that the current laws and regulations stipulate that the demolition person should entrust the evaluation agency to carry out the evaluation, which inevitably makes the evaluation not neutral and objective. For this reason, the current evaluation entrustment method should be completely changed. The two parties can negotiate to determine the evaluation agency. If the evaluation agency cannot be jointly selected within the specified time, the random selection method can be used to determine the evaluation agency with evaluation qualifications for evaluation; at the same time, the appraisers and evaluation agencies must issue false evaluation reports to make the legal provisions on civil compensation, administrative and criminal penalties, it is necessary to strengthen the management and standardization of appraisers and appraisal institutions, and increase the punishment of appraisers and appraisal institutions.

3, the provisions of a sound real estate collection procedures.

(1) The decision procedure for the expropriation of real estate.

In order to prevent the abuse of administrative power, the "needs of public interest" should be strictly examined through "due process" before making a decision on expropriation, and the procedures and methods of administrative hearing can be adopted. Although the expropriation of real estate does not require the consent of the subject to be expropriated, in the administrative hearing of the "needs of public interest", the subject to be expropriated (or its representatives) should participate, and the opinions of the subject to be expropriated should be fully listened to and respected. and this procedure should be transparent and open, and give the subject to be expropriated the legitimate right to file administrative reconsideration and administrative litigation if he disagrees with the expropriation decision.

Although there are practical experts on the real estate expropriation by "government decision or judicial review by the court to define the public interest" expressed strong opposition. [18] However, as the author advocates, while clearly defining the basic connotation of "public interest" in China's real estate expropriation legislation, the establishment of a "public interest" administrative review and administrative litigation judicial review mechanism may be the best choice at present.

(2) Procedures for the execution of real estate expropriation

First, set the collection freeze period.

The author believes that we can refer to the relevant provisions of the existing demolition freeze period, set the expropriation freeze period, in the expropriation freeze period of the subject shall not change the ownership status and physical natural condition of the expropriated real estate, that is, the subject and object of the expropriation will be fixed, which is conducive to promoting the smooth implementation of real estate expropriation.

Second, the determination and implementation of compensation.

Although the expropriation decision does not need to be negotiated with the expropriated subject, the author believes that a negotiation mechanism can be introduced. Within a certain negotiation period, if the expropriation parties cannot reach an agreement on the expropriation compensation, the government that approved the expropriation of the land can first Make a ruling. If the expropriated subject is not satisfied with the expropriation compensation ruling, it can sue the people's court and the people's court will make a final judgment.

Once the expropriation parties reach an agreement on the expropriation compensation, or the court makes an effective judgment on the expropriation compensation, both parties shall strictly implement it. If either party fails to implement the expropriation compensation agreement or the court's judgment, the other party may apply to the court for enforcement.

(3) Supervision procedures for the expropriation of real estate

The objects of supervision are mainly real estate expropriation approval agencies and their staff, expropriation enforcement agencies and their staff, and institutions that manage the distribution of expropriation compensation fees, such as rural collective organizations and personnel. In the whole process of expropriation, for example, in the management and distribution of land compensation fees for land expropriation by rural collective organizations, a transparent, timely and effective supervision mechanism should be established to facilitate the subject of expropriation and other relevant state organs, such as the National people's Congress and judicial organs, to supervise the expropriation of real estate, and to prevent and investigate and deal with illegal acts such as abuse of power and malpractice for personal gain by relevant organs, organizations and their staff.

(4) Relief procedures for the expropriation of real estate.

In view of the "public interest" review mechanism in the real estate expropriation decision procedure, as well as the determination and implementation mechanism of expropriation compensation, the administrative reconsideration law and the administrative procedure law should be amended accordingly, and it is clearly stipulated that the subject to be expropriated has the right to file administrative reconsideration, administrative litigation and corresponding execution procedures.

4, strict restrictions on real estate expropriation of departmental legislation, local legislation.

The national legislature should thoroughly clean up and abolish departmental regulations, local regulations, local government regulations, and normative documents that conflict, contradict, and are inconsistent with the Property Law, and completely change the current departmental legislation, local legislation and superior laws. Offside, conflicts and other issues. At the same time, in the real estate expropriation laws and administrative regulations, the authority and scope of local legislation must be strictly limited. The author believes that in principle, the ministries and commissions of the State Council have no right to make regulations on expropriation, and local legislation can only make local specific regulations for certain specific standards of expropriation compensation.

5. Establish a scientific, forward-looking and serious urban and rural planning system to ensure the stability of urban and rural planning and prevent frequent implementation of real estate expropriation.

The author believes that the state should not frequently implement real estate expropriation, but an important means to prevent frequent expropriation is to establish a scientific, forward-looking and serious urban and rural planning system to maintain the stability of urban and rural planning in a long period of time. However, it is a pity that from the reality of my country's urban and rural construction, some urban and rural planning in my country changes frequently, which is seriously lacking in scientificity, foresight and seriousness, and does not pay attention to the protection of the environment and historical relics., Widening roads and other phenomena. In this regard, the United States is a good reference and learning object [19]. For this reason, the author suggests that the planning period of urban master planning and town master planning in the urban and rural planning law should be extended, instead of "the planning period is generally 20 years", and the preparation and management of urban regulatory detailed planning should be strengthened, the revision of regulatory detailed planning should be strictly controlled, and the standards and norms of urban and rural planning should be further improved to ensure that the planning is scientific and forward-looking. (9377 words)

Comments:

[1] Wang Liming, "The Implementation of the Property Law and the Improvement of the Expropriation and Expropriation System", Law Journal, 2009.2.9.

[2] Li Lin, The Value of Legislation and Its Choice,http://www.lunwentianxia.com/product. free.5985449.3/

[3][De] Rudolph. Feng. Yellin, Struggle for Rights, translated by Zheng Yongliu, Law Press, 1st Edition, 2007.

[4] such as article 38 of the grassland law and article 16 of the regulations on the implementation of the forest law.

[5] Wang Liming, "The Implementation of the Property Law and the Improvement of the Expropriation and Requisition System", Law Journal, 2009.2.9.

[6] Cai Huiyan, "A Brief Discussion on Some Issues of Land Expropriation Procedures",http:// law -lib.com/lw/lw_view.asp?no = 4701

[7] Expropriation and expropriation are two legal systems that are both related and distinct. The common ground is that it is for the purpose of public interest, and the other is mandatory, without the consent of the other party. The difference between the two is that the essence of expropriation is the compulsory acquisition of real estate ownership, at the cost of compensation, is a paid acquisition. Another difference between expropriation and expropriation, expropriation is a legal system in a peaceful environment, and expropriation is a special measure in a state of emergency. For details, see Liang's lecture on property rights law: some issues in the formulation and implementation of property rights law,http://www.dffy.com/blog/a/biglaw/ 5940.html

[8] The Law Committee of the National People's Congress, the Legislative Affairs Committee of the Standing Committee of the National People's Congress, the Legislative Affairs Office of the State Council, the Ministry of Land and Resources and other departments and experts have repeatedly studied and agreed that: in different fields, under different circumstances, public interests are different, and the situation is quite complicated. It is difficult for the property law to make a unified and specific definition of public interests. For details, see Wang Shengming, editor-in-chief, "Interpretation of the the People's Republic of China Property Law", edited by the Civil Law Office of the Legislative Affairs Committee of the Standing Committee of the National People's Congress, China Legal Publishing House, p. 88.

[9] Wang Liming, On Property Law (Revised Second Edition), China University of Political Science and Law Press, Revised Second Edition, June 2008, p. 126.

[10] Article 132 of the "Property Law" clearly stipulates that if the contracted land is expropriated, the land contractual management right holder has the right to obtain corresponding compensation in accordance with the provisions of Article 42, paragraph 2 of this law.

[11] Wang Liming, "The Implementation of the Property Law and the Improvement of the Expropriation and Requisition System", Law Journal, 2009.2.9

[12] Xu Zhongyuan, "On the Real Estate Expropriation System in France-Also on the Formulation of the Real Estate Expropriation Law in Mainland China", China Civil and Commercial Law Network

[13] Professor Liang Huixing further elaborated that the benefits enjoyed by individual members and some members of society do not belong to the public interest, and the benefits "indirectly enjoyed" by all members of society do not belong to the public interest. The benefits directly enjoyed by all members of society belong to public interests, such as building military airports and civil airports, building roads and railways, building court trial buildings, government office buildings, building public museums, public libraries, public hospitals, public schools, etc. And so on; while developers build commercial housing, office buildings, enterprises build factories, shopping malls, etc., it is the developers and enterprises that "directly enjoy" the benefits. Due to the development of the local economy, the government uses the taxes collected from developers and enterprises to improve social welfare and protect the natural environment, and the people "indirectly enjoy" some benefits, which is fundamentally different from the commercial interests "directly enjoyed" by developers and enterprises engaged in real estate development and industry and commerce. The Property Law stipulates that "public interest" is the legal condition for expropriation, which is to exclude "commercial interests" and "commercial land" from the expropriation system. For details, see Liang's lecture on property rights law: some issues in the formulation and implementation of property rights law,http://www.dffy.com/blog/a/biglaw/ 5940.html

[14] The principle of full compensation refers to the scope and criteria of compensation. That is, the specific amount of compensation is determined according to the total loss of the victim and full consideration of the long-term impact on the survival and development interests of the parties. For details, please refer to Zhang Yudong's "Research on Several Legal Issues of Public Welfare Expropriation", published in "On the Legal System of Real Estate", China Legal Publishing House, edited by Fang Shaokun and Wang Hongping, 1st edition, January 2009.

[15] Zhang Yudong, "Research on Several Legal Issues of Public Welfare Expropriation", published in "On the Legal System of Real Estate", China Legal Publishing House, edited by Fang Shaokun and Wang Hongping, 1st edition, January 2009.

[16] "Shandong Province Land Acquisition Compensation New Standard Implemented in July with the Same Land and Price for Three Years", published in Qilu Evening News, April 09, 2009

[17] Wang Cailiang, "The Latest Legal Operational Guidelines for Expropriation and Demolition", Law Press, 1st Edition, November 2007, p. 478.

[18] Wang Cailiang, "The Latest Legal Operational Guidelines for Expropriation and Demolition", Law Press, 1st Edition, November 2007, p. 488.

[19] A highly urbanized country in the United States, the level of urbanization in the United States has reached more than 75%, which can be said to have achieved urban modernization, rural urbanization and urban-rural integration. Moreover, American urban planning is highly scientific, forward-looking and serious. For example, Chicago's urban master plan began in the early 20th century. Although it has gone through a century, the city is still developing according to the principles determined by this plan. Built in 1937, San Francisco's Golden Gate Bridge has six lanes and is still in operation today. There are many major highways in the United States that are thirty or forty years old and are still not far behind. For details, please refer to "Learning from American Urban Construction Experience and Innovating Ideas for Overall Urban and Rural Development", Yizheng Daily Time: December 26, 2003
(This article won the first prize of Jinan excellent paper)