At present, the authority and procedures of expropriation and demolition of houses by units and individuals on urban state-owned land are applicable to the Regulations on the Administration of Urban House Demolition formulated by the State Council 200 1. Starting from 10 this year, after the implementation of the Property Law, the demolition management regulations are inconsistent with the relevant provisions of the Property Law, which may lead to the expropriation and demolition of urban houses and will stop implementation.
In order to solve this problem, standardize the expropriation and relocation compensation activities, safeguard the public interests, and ensure the lawful rights and interests of the expropriated people and the smooth progress of urban construction, according to the relevant provisions of the Property Law, the Legislative Affairs Office of the State Council and the Ministry of Construction drafted a draft amendment to the Urban Real Estate Management Law, suggesting that the State Council should be authorized to formulate administrative regulations on expropriation and relocation compensation for units and individuals on state-owned land according to the provisions of the legislative law before the relevant expropriation laws are promulgated.
On March 6, 2007, the Fifth Session of the Tenth National People's Congress passed the Property Law of People's Republic of China (PRC). The first legislative purpose of this law determines the protection of property rights of obligees. After the law comes into effect, property owners can effectively protect their rights and interests through the law. However, at present, the content of demolition in the property law is still very general in practice and needs to be gradually improved in practice.
First, what is public interest?
Article 42 of the Property Law of People's Republic of China (PRC) stipulates that an individual's house or other property rights may be expropriated in the public interest. This article establishes a principle, that is, only under the premise of public interest, the property owner will unconditionally transfer the property right to the state; For commercial demolition of non-public interests, property owners can decide whether to transfer their property rights. This is undoubtedly a great progress in history, but it is an important regret that the law does not define public interest, because in some cases it is difficult to define public interest at present, and the legislative purpose cannot be achieved without defining public interest, which will seriously infringe on the legitimate interests of property owners.
Personally, the public interest should meet the following conditions: first, the beneficiary of the public interest must be the state or an unspecified person; The interests of the second beneficiary must be unspecified and multifaceted, and cannot be determined by one side; Third, the benefits of public interest must be lasting; Fourth, accurately grasp the hierarchy of public interests and effectively grasp the overall national interests and local interests.
Second, who will define the public interest?
The Property Law does not define public interest. In the future, the definition of public interest will be revised by the legislative department or the judicial department will formulate a judicial interpretation according to the application of the property law. However, both of them are facing a serious lag and cannot effectively safeguard the legitimate rights and interests of obligees.
It is more reliable that the court defines the public interest in a timely manner according to the provisions of the Property Law and the case situation, which is in line with the actual situation, but it requires the court to be highly neutral, free from interference from any force, and exercise judicial review jurisdiction fairly. Article 7 stipulates that the acquisition and driving of real rights shall abide by the law and respect social morality, and shall not harm the public interests and the legitimate rights and interests of others.
Third, the issue of forced relocation.
The problem of forced relocation is very common in all parts of our country, and the situation is also very complicated. For the demolition in line with the public interest, if the conditions stipulated in the Property Law can be met in practice, the forced demolition will become a condition for existence, because the existing living conditions will not be reduced, and most of them will not refuse; For the demolition of non-public interests, according to the provisions of the Property Law, the obligee may refuse to transfer the property right. In this case, the obligee should not be deprived of his free will, so there is no problem of forced demolition in this case.
Fourth, compensation for demolition under the condition of public interest.
Paragraph 3 of Article 42 of the Property Law stipulates that the expropriation of individual houses shall be compensated according to law, and the living conditions of the expropriated person shall also be guaranteed. This establishes that the obligee must transfer his property when demolishing individual houses in the public interest, but he has obtained two guarantees: the first is the right to get compensation, and the second is the right to keep the existing living conditions unchanged. In this case, anyone may become a nail house under the current circumstances. Now house prices are soaring, and the previous demolition was calculated according to the value of the demolished house. However, in practice, it is almost impossible to obtain the same living conditions for compensation calculated by this standard, so how to effectively solve this problem has become the most realistic problem. Personally, I think that the effective way to solve this problem must be to calculate compensation according to the market value of houses that have not been demolished, so that the problem can be solved.
Generally speaking, there are still many demolition problems in practice. How to effectively safeguard the interests of the obligee under the property law will be the most important issue, which is also related to the application of the property law.