Fundamentally speaking, we should establish and improve the corresponding legal system to protect the private property rights enjoyed by citizens and the property rights enjoyed by property owners. The most important legal system is the compensation system, and the core of the compensation system is to determine the amount of compensation. The national standard "Specification for Real Estate Valuation" (hereinafter referred to as "Specification") has only six principles for compensation and valuation of land acquisition and demolition, and has not given the corresponding technical route and method, and has not established the basic theory of demolition and demolition valuation from the perspective of fully protecting the private property rights of the demolished. The Guiding Opinions on Urban House Demolition and Valuation (hereinafter referred to as "Opinions") promulgated by the Ministry of Construction on June 5438+ 10/2004 clearly stipulates the selection of demolition and valuation institutions, the mediation of demolition and valuation disputes, and the handling of disputes over the nature and area of demolished houses, which is helpful to standardize the behavior of urban house demolition and valuation, so as to safeguard the demolition parties, especially the demolished ones. However, the Opinions did not break through and innovate on the basis of the Code in terms of the value standard, method, time and technical route of demolition evaluation. From the legislative spirit of constitutional amendment to protect citizens' private property rights, it is necessary to reconstruct the current compensation evaluation system for real estate demolition, including compensation standards, technical routes and compensation procedures.
First, the innovation of compensation evaluation system for demolition involved in real estate expropriation.
According to the spirit of the new constitution, it should be made clear that the government should meet three conditions for expropriation of land and citizens' private property: first, it should meet the needs of public interests; Second, the subject of collection can only be the state, and the collection procedure must comply with the law; Third, fair compensation should be given to the expropriation. System innovation mainly includes the following two aspects:
1. For expropriation according to law, the following methods are required: 1. The law gives the purpose of expropriation as clearly as possible-"public interest"; 2. The government hired a professional real estate appraisal agency to evaluate the expropriated property and put forward the quotation of compensation standard; 3. The expropriated party may also hire an independent real estate appraisal agency to conduct appraisal and make a counter-offer; 4. If the expropriated party questions whether the expropriation is in line with the purpose of "public interest", it may request a hearing, and the government shall explain the necessity and rationality of the expropriation at the hearing; 5. If a compensation agreement is reached and other statutory conditions are met, the demolition permit shall be issued by the competent department of government demolition; 6. If the expropriated party still questions whether the government is in line with the "public interest" after the hearing, or the two sides cannot reach an agreement on the amount of compensation, the expropriated party has the relief means to make the government give up the expropriation through judicial channels; 7. After entering the judicial process, if the government thinks that the expropriation is urgent, in order not to affect the public interest, the government can pay an appropriate amount of compensation to the court in advance as a deposit, and request the court to let the government obtain the expropriated property in advance before the final judgment, and the government department in charge of demolition will issue the demolition permit; 8. After the expropriation dispute enters the trial stage, the court requires the independent real estate appraisers hired by both parties to submit the appraisal report and exchange it in court for cross-examination. The government pays the compensation amount according to the effective judgment of the court, and the competent department of government demolition issues the demolition permit.
Second, the statutory compensation for the expropriated party should be fair compensation, full compensation and timely compensation. Specifically, it is mainly reflected in three aspects: 1. The scope of compensation is not limited to the open market value of the expropriated real estate, but also includes the interests lost by the expropriated person due to expropriation (such as relocation expenses and operating losses). ); 2. The compensation object is not limited to the expropriated person, but also includes the beneficiaries related to the expropriated property (such as the real estate lessee, etc.). ); 3. The appraisal result is an important basis for negotiation between the two parties or court judgment, which requires that the appraisal itself should be fair and just, and the value standard of the appraisal should be the open market value; 4. Compensation should be timely, because "justice that is late is not justice", and compensation that is not timely is definitely unfair and insufficient.
Second, the commercial development of real estate demolition compensation evaluation system innovation
On June 5438+1October 65438+April, 2003, the Third Plenary Session of the 16th CPC Central Committee adopted the Decision of the Central Committee on Several Issues Concerning the Improvement of the Socialist Market Economic System, demanding that the land acquisition system be reformed and the land acquisition procedures be improved in accordance with the principles of safeguarding farmers' rights and controlling the scale of land acquisition. Strictly define public welfare and operational construction land, and land requisition must conform to the overall land use planning and use control, and give farmers reasonable compensation in time. The constitutional amendment has strengthened the protection of private property rights enjoyed by citizens. Therefore, institutional innovation is more necessary and urgent for the compensation evaluation of real estate demolition involved in commercial development.
The first point of system innovation is to strictly distinguish expropriation from commercial development, that is, only when it is determined according to law that it is for the needs of public interests can the national legal system on expropriation be applied. Demolition due to expropriation is compulsory and belongs to "buying and selling", that is, as long as the government compensates the public interest, it can only "sell" its property to the government according to legal procedures and laws; As for the demolition due to commercial development, the actions of both parties are civil legal acts between equal civil subjects, which should follow the principles of equality, voluntariness, autonomy of will and good faith in the contract law, and should not be "forced to buy and sell", that is, as long as the property owner does not agree to transfer its property, no unit or individual may "forced to buy and sell".
For the demolition of commercial development, the innovation of demolition evaluation system should also require: first, to further clarify the procedural legal system related to demolition; Second, it is absolutely necessary to avoid the government's involvement in the demolition dispute and become a party to the dispute, so as to remain neutral and obtain the referee status, and accordingly avoid the possibility of conflict between the demolished person and the government; Third, the compensation standard should be different from the expropriation compensation, and the relocated people can participate in the profit distribution of commercial development. Specifically, it mainly includes the following two aspects:
1. As for the procedures of commercial development and demolition, the demolition is required to be carried out according to the following steps: 1. The developer hired a professional real estate appraisal agency to evaluate the demolished real estate and put forward the quotation of compensation standard. 2. The developer negotiates with the real estate owner one by one. During the negotiation, the property owner can also hire an independent real estate appraisal agency to make an appraisal and make a counter-offer; If the developer and the owner reach an agreement, the compensation agreement will be initialled (it will take effect after the relevant government departments issue the demolition permit). 3. If the owner of the real estate property initialed by the agreement reaches more than 70% of the total number, and the total amount of real estate to be demolished involved in the initialed compensation agreement accounts for more than 50% of the total amount of real estate to be demolished, the demolition permit shall be issued by the government demolition department on the premise of meeting other legal conditions, and the developer shall enter the formal demolition procedure after paying compensation; Otherwise, the demolition procedure is terminated. 4. After entering the formal demolition procedure, for other real estate property owners who have not concluded a compensation agreement with the developer, consult with the developer to conclude a compensation agreement with reference to the standards of the compensation agreement already concluded; If no agreement can be reached, the amount of compensation shall be determined through judicial procedures. 5. Entering the judicial process will not affect the continuation of the demolition. The demolition can apply for compulsory demolition, but the demolition should refer to the standards of the compensation agreement already concluded and pay an appropriate amount of compensation to the court as a deposit. 6. After the demolition compensation dispute enters the trial stage, the court requires the independent real estate appraisers hired by both parties to submit the evaluation report and exchange it in court for cross-examination. The demolished person shall pay the compensation amount according to the effective judgment of the court.
Second, the scope and standard of compensation for demolition, that is, the technical route of demolition evaluation, should include: 1. Evaluate the open market value of the demolished real estate on the date of issuing the demolition permit, as well as the income (such as relocation expenses and operating losses, etc.). ) was lost by the demolition people. Similarly, the object of compensation is not limited to the demolished, but also includes the beneficiaries (such as real estate lessees) who have the right to compensation related to the demolished property. 2. According to the new planning conditions after the demolition, evaluate the open market value of commercial development projects after the demolition permit is completed. 3. When necessary, the real estate appraiser estimates the value-added amount that the demolished real estate may participate in the distribution for both parties or one party. Regarding the technical route of demolition evaluation, it is worth noting that the government actually participates in the benefit distribution of commercial development projects, but its form is government tax; In fact, for the value-added part of commercial development, land, capital and labor should all participate in the distribution of profits. Therefore, the benefit distribution of the demolished people participating in commercial development projects can be understood as the remuneration that the demolished people should get for participating in commercial development with their real estate as capital contribution. Of course, because the developer has to bear the development risk, its share should be more than that of the demolished person, and the specific value-added distribution amount shall be agreed upon by the demolition parties through consultation; For a few people who can't negotiate with developers, the distribution of value-added can also be determined through judicial channels.
Legal practice of settlement of disputes over compensation and resettlement contracts for urban house demolition.
First, the effectiveness of the demolition and resettlement contract review
The effectiveness review of the demolition and resettlement contract should be based on the subject and content of the contract. The Regulations on the Administration of Urban House Demolition (hereinafter referred to as the Regulations) defines the parties to the demolition and resettlement contract. As a demolition person, it refers to the unit that has obtained the permit for house demolition. However, in the trial practice, there are different opinions on whether the branch of a qualified unit or the unit entrusted by the demolition can be the main body of the demolition and resettlement contract. Whether the parties to the demolition and resettlement contract can become their branches or clients should be analyzed on a case-by-case basis and cannot be generalized. When a branch or trustee obtains the authorization of its unit or client to conclude a demolition and resettlement contract in the name of its superior unit and client, its subject should be qualified. If customers, branches, etc. Where a demolition and resettlement contract is concluded in its own name and a lawsuit is filed, its authorized person or superior legal person shall become the subject of the lawsuit.
The so-called demolished person refers to the owner of the demolished house. The person who holds the property right certificate of the house is undoubtedly the person to be demolished, but can some actual owners who enjoy the house of the person to be demolished through inheritance, sale, divorce and gift be treated as the person to be demolished? The answer should be yes. For the owner of the demolished house, it is not appropriate to make a narrow interpretation, that is, it is defined as the person who holds the property right certificate, otherwise it is not conducive to protecting the legitimate rights and interests of the demolished person and the commodity circulation in the real estate market, and should be analyzed in detail with a case.
If part of the owners of the demolished houses sign a demolition compensation and resettlement agreement without the prior consent of other owners, or if the demolished houses sign a demolition and resettlement contract with the lessee of the demolished houses, the agreement is deemed invalid because it infringes on the rights of others. For the owner of the house to be demolished who has occupied and used it by buying and selling, but has settled the house payment formalities with the original property owner, and the original property owner does not claim that the sales contract is invalid, the demolition and resettlement contract reached between the purchaser and the demolisher is valid, but it should be ordered to go through the property right transfer formalities as soon as possible.
The review of the contents of the demolition contract mainly depends on whether the contents of the demolition and resettlement contract are the expression of the true meaning of both parties and whether they comply with the demolition laws and regulations. If the content is contrary to the law, it shall be deemed invalid.
Second, the demolition and resettlement contract property disputes
According to the "Regulations", residents have the right to exchange property rights. In practice, most demolition and resettlement contracts stipulate the property rights of newly-built resettlement houses. When dealing with disputes over the property rights of resettlement houses, if there is an agreement in the contract, it shall be handled according to the contract; if there is no agreement in the contract on the property rights of newly-built resettlement houses, it shall be handled according to the laws and regulations at the time of demolition. If there are no provisions in laws and regulations, the property rights can be exchanged in accordance with the regulations, which means that the demolished person has the right to choose property rights exchange and compensation. But if the price compensation has been made, the property right exchange can no longer be carried out. For * * * who owns all the houses and has the right to claim property rights exchange and price compensation, the property rights can be exchanged. * * * Disputes with some people over * * * property rights can be handled as separate cases. Demolition of houses belongs to illegal buildings and temporary buildings exceeding the approved period, and neither property rights exchange nor compensation can be made. However, if the demolished house was not considered as a serious violation of urban planning by the municipal planning department at that time, but was fined, and the owner of the house went through the relevant procedures, the house would be changed from an illegal building to a legal building and could enjoy the treatment of property right exchange and compensation. Demolition of temporary buildings, the demolition of temporary buildings that have not exceeded the approved use period, the demolition people enjoy the compensation for demolition according to law, but do not enjoy the resettlement treatment. Appendices of non-public housing demolition cannot be exchanged for property rights, and only the demolition person can give monetary compensation.
Three, the demolition and resettlement contract compensation dispute handling
Because real estate development companies account for a large proportion in demolition, the nature of these departments determines that they must pursue profit maximization. Therefore, in practice, these departments often demolish the houses of the original residents at low prices, and the compensation fee for demolition is often too low or violates the demolition and resettlement contract without compensation. There are also many such disputes brought to court. For the settlement of compensation disputes, if there is an agreement in the demolition and resettlement contract, it shall be handled in accordance with the agreement in the demolition and resettlement contract; The party that fails to perform the contract shall bear the liability for breach of contract.
For pricing compensation, the new amount of compensation should be combined with the resettlement price according to the construction area of the demolished house, and the location difference should be fully considered when compensation is made. Houses with different uses should have different compensation standards, mainly referring to residential houses and business houses. How to identify the use nature of houses in demolition is a controversial issue in the current demolition and resettlement. The author thinks that it should be determined according to the actual use nature of the demolished houses. Due to the demolition of non-residential housing caused by the suspension of production and business, the demolition should be given appropriate compensation.
For the lessee of the demolished house, when the lease term is not full, the lessee has the right to use the demolished house, and the lessee has the right to ask the demolisher and the property owner to return the paid rent and compensate for the losses. If the property right of the owner of the house changes, the lease relationship between the lessee and the original owner of the house will continue. During the transition period, if the lessee arranges his own residence, the demolition person shall pay the temporary resettlement subsidy. Relocation subsidies and temporary resettlement subsidies shall be implemented in accordance with the relevant provisions of the municipal government. If the transition period is extended due to the responsibility of the demolisher, the demolisher shall be liable for breach of contract, and the temporary resettlement subsidy shall be increased from the overdue date.
Four, the demolition and resettlement contract on the resettlement area, location, floor, resettlement disputes.
The parties to the demolition and resettlement contract shall perform it strictly in accordance with the contract. If the relocated people arbitrarily change the resettlement area, location and floor in the process of housing reconstruction, resulting in the failure to perform the relocation contract, and the relocated people insist on resettlement according to the relocation contract, it shall be ruled that the relocated people shall pay the relocated people according to the standards agreed in the contract. If the demolisher refuses to resettle on the grounds that there is no room, but the demolished still insists on resettlement according to the original contract, the demolisher shall be ordered to pay separately according to the standard agreed in the contract. If the demolished person refuses to implement it, he can allocate funds for the demolished person, buy commercial housing in the real estate trading market and deliver it to the demolished person for compulsory execution.
Demolition of the same house in the form of property rights exchange compensation to a number of people to be demolished, or resettlement to a number of people to be demolished, resulting in compensation or resettlement housing ownership disputes, it should be confirmed that the disputed house belongs to the first party that entered into the agreement; If the order of concluding the agreement cannot be determined, it can be handled as appropriate according to the needs of the demolished person and the urgency of housing placement. For those who have gone through the formalities of ownership of resettlement houses, have actually moved into resettlement houses and have demolition and resettlement contracts, the principle that property rights are superior to creditor's rights can be applied. First, those who have enjoyed the ownership and use right of the disputed house can be resettled, while those who have not obtained the disputed house can bring a lawsuit to the demolition person alone, and the demolition person is responsible for compensation and resettlement.
If the location and area agreed in the contract are not clear, which is likely to cause ambiguity, an explanation in favor of the demolished person shall be made. If there is a contract for construction settlement, it shall be handled in accordance with the contract. If there is no agreement, it shall be implemented in accordance with laws, regulations and policies. For the breach of contract of late payment or payment of the subject matter, the breaching party should not only bear the liability for breach of contract of late payment or payment of the subject matter, but also bear the adverse liability for price risk. If the subject matter is delivered late and the price rises, the original price shall prevail; When the price drops, the new price shall prevail. Fails to pay, when the price rises, according to the new price; When the price drops, the original price shall prevail.
Attention should be paid to evidence preservation in urban house demolition
Because urban house demolition involves the vital interests of the parties, it involves a wide range, the situation is complex and it is difficult to deal with. If it is not handled well, it will easily lead to intensification of contradictions. Therefore, in the process of house demolition, it is very important to preserve evidence and properly handle disputes. Based on the problems existing in housing demolition cases in recent years, the author believes that evidence preservation should be paid attention to in the following situations in the process of urban housing demolition.
First, the evidence preservation of the escrow house. The trustee also belongs to the demolished person. However, because the trustee has no ownership or disposal right to the demolished house, in the absence of the owner, the demolished person should keep relevant evidence such as the area of the demolished house, the composition of building materials, and the old and new degree of the house. If the trustee is the competent department of house demolition, the compensation and resettlement agreement must be notarized by a notary office and the evidence must be preserved. If the above evidence is destroyed without taking preservation measures, it will create a hotbed of disputes.
Second, the evidence preservation of the sued house. In the process of house demolition, if the demolition party refuses to accept the compensation and resettlement award, it may bring a lawsuit to the court within the statutory time limit. During the litigation, the demolition shall stop if the demolition person does not resettle the demolished person or provide the revolving house. Resettlement or provision of revolving houses for the people to be demolished may not stop the demolition. There is no law on whether to implement evidence preservation in this case, but the author thinks that evidence preservation should be carried out in the house of the demolished person to prevent the lawsuit from lacking necessary evidence.
Third, the evidence preservation of houses with property rights disputes. Demolition of houses with disputed property rights, if the dispute is not resolved within the prescribed time limit announced by the competent department of house demolition, the demolition shall put forward a compensation and resettlement plan, and the demolition shall be implemented after the approval of the competent department of house demolition of the people's government at or above the county level. Before the demolition, the competent department of house demolition shall organize the demolition to carry out survey records on the demolished houses, and go to the notary office for evidence preservation.
Fourth, evidence preservation of mortgaged houses. If the mortgaged house is demolished and property rights are exchanged, the mortgagee and mortgagor shall re-sign the mortgage agreement. If the two parties fail to reach an agreement within the prescribed time limit announced by the competent department of house demolition, the demolisher shall actually demolish the house with property disputes and carry out the corresponding evidence preservation work.
5. Evidence preservation of rented houses. The demolition of rental residential houses shall be subject to property rights exchange and maintain the original lease relationship. If the terms of the original lease contract are changed due to demolition, it shall be revised accordingly. When reviewing the lease relationship, we should review the lease license issued by the real estate department and should not protect the undocumented. The original lease contract, the change of property rights and the changed lease contract shall keep the necessary evidence.
How to get the relocation compensation?
Notice on the payment and use of monetary compensation and resettlement funds for house demolition was officially announced. This regulation has made specific provisions on the use, loss reporting and entrusted payment of special deposits vouchers that are of public concern.
If the demolished person (or lessee) needs to withdraw cash, he should hold his special deposit slip and his ID card to the bank that issued the special deposit slip, fill in the withdrawal slip and apply for withdrawing cash from the special deposit slip. Banks should write off in accordance with the relevant cash management regulations, and if they need to be converted into savings deposits, they should do the same.
In the case of transfer payment, if the demolished person (or lessee) needs to transfer all or part of the commercial housing funds, he/she must hold his/her special deposit slip, Shanghai Personal Housing Resettlement Transfer Certificate, the original purchase contract, a copy of the purchase contract and his/her ID card, and ask the bank that issued the special deposit slip to transfer the funds to the real estate agent, and the bank will make the transfer after checking it. If the person to be demolished needs to pay for the stock room with a special deposit slip, he must transfer the receipt, the signed sales contract and his ID card to the bank that issued the special deposit slip or pay it to the other party in cash.
If the demolished person (or lessee) pays the commercial house and the price of the stock room is lower than the special deposit receipt, the balance can be withdrawn by the demolished person (or lessee) in cash or transferred to the bank savings deposit.