The first part: Suggestions and opinions on the revision of important matters.
On October 29th, 2065438+001kloc-0/0, the Legislative Affairs Office of the State Council revised and issued the Regulations on the Management of Urban House Demolition (hereinafter referred to as the Regulations on the Expropriation and Compensation of Houses on State-owned Land (Draft for Comment)), and issued a public announcement for soliciting opinions from all walks of life. The suggestions and opinions of the people of Changsha, Hunan Province are now submitted to the Legislative Affairs Office of the State Council. Please listen to the voice of the demolished. 200 1, 1, 1 the State Council's Demolition Regulations, which came into effect ten years ago, have violated the relevant provisions of the Property Law, the Urban Real Estate Management Law and other laws because they were not amended in time. In recent years, urban housing demolition has caused a large number of illegal demolition, barbaric demolition, violent demolition and various contradictions and conflicts, and it has intensified. Tang Fuzhen's self-immolation in Chengdu; Qingdao's "Zhang Xia self-immolation" incident; Chifeng "Wang Na self-immolation" incident; Xi Hsinchu's self-immolation in Beijing; Benxi "Zhang Jian stabbed the demolitions" incident; Nanjing "Weng Biao self-immolation" incident; Hunan "Jiahe forced demolition" incident; Shandong "Li Minsheng hanged himself"; Shanghai's "Pan Rong's Anti-Violent Demolition" incident and Chongqing's Chenshu Dwelling House incident are all calling for the promulgation and implementation of the new demolition regulations as soon as possible. Therefore, the revision of the Draft for Comment has become an unprecedented legislative activity that people pay close attention to and actively participate in.
With tears in our eyes, we recorded the heartfelt complaints and hopes of the demolished people, and now we have compiled them into suggestions and opinions and reported them to the State Council.
First, it is suggested that the name of "Demolition Regulations" in the State Council be changed to "Regulations on Compensation and Resettlement for Urban Housing Expropriation and Transfer".
The "Draft for Comment" published by the Legislative Affairs Office of the State Council is an incomplete, incomplete, full of loopholes, full of traps, and evasive. The "Draft for Comment" does not equally include "house demolition on urban collective land" and "house demolition on land needed by urban non-public interests". Is it necessary to let the house demolition on the above-mentioned land continue to be brutally and violently demolished? ! Continue the struggle between man and excavator? ! A tragic tragedy that continues life and fire? !
Therefore, it is suggested that the name of the exposure draft be changed to "Regulations on Compensation and Resettlement for Urban Housing Expropriation and Transfer" (hereinafter referred to as the new demolition regulations) for the following reasons.
1, it is not appropriate to change the name of "urban houses" in the demolition regulations to "houses on state-owned land" in the name of the draft for comment. Because "urban houses" include "houses on urban state-owned land" and "houses on urban collective land". Moreover, with the need of "urbanization" development in China, the scope of urban expansion is mainly to demolish "houses on urban collective land". In the future, a large number of disputes and contradictions caused by urban housing demolition will mainly focus on housing demolition on urban collective land.
Therefore, it is suggested to keep the expression of "urban residence" in the original name more comprehensive and accurate.
2. It is inappropriate to change the name of "demolition" in the Demolition Regulations to "expropriation" in the name of "draft for comments"; The word "demolition" is not taboo in law. Article 42 of the Property Law clearly uses "compensation for demolition according to law". If "expropriation" is not in accordance with the law, it will be more coercive, more horrible and bloodier than "demolition"! Expropriation is only a way of demolition, which should be realized through expropriation. Why use the method of "expropriation" to cover up the purpose of "demolition"?
Moreover, urban house demolition includes "expropriation and demolition" of houses that need land because of public interests and "allocation and demolition" of houses that don't need land because of public interests, which are two different kinds of house demolition. "Expropriation and demolition" is based on administrative regulations; "Transfer and demolition" is based on civil laws and regulations. At present, in the national urban housing demolition, the land required for real public interests accounts for about 30%; About 70% of the land that is not needed by public interests has been demolished. It shows that the proportion of "allocation and demolition" of houses that need land for non-public interests is obviously greater than that of "expropriation and demolition" of houses that need land for public interests.
Therefore, it is suggested that "expropriation" be changed to "expropriation and transfer of demolition", which is more comprehensive and accurate.
3. It is suggested that "compensation" in the name of "Draft for Comment" be changed to "compensation and resettlement". Because "compensation" does not fully express all the legal obligations that "requisitioner and transferor" should bear. According to Article 42 of the Property Law and Article 6 of the Urban Real Estate Management Law: "When using land for public interests, the state may expropriate the houses of units and individuals on state-owned land, and give compensation for demolition according to law, so as to safeguard the legitimate rights and interests of those who have been demolished; Expropriation and demolition of individual houses, but also to protect the living conditions of the demolition. The specific measures are stipulated by the State Council. " In the above-mentioned legal provisions, "compensation for demolition according to law" and "ensuring the living conditions of the demolished people" are two legal matters, namely "compensation" and "resettlement", which are legal obligations that the collector and the transferee must bear. It is also the legal right that the demolished person should enjoy.
Therefore, it is suggested to change "compensation" to "compensation and resettlement", which is more comprehensive and accurate.
To sum up, it is suggested that the name of "Draft for Comment" published by the State Council Legislative Affairs Office be changed to "Regulations on Compensation and Resettlement for Urban House Expropriation and Transfer".
2. It is suggested that two chapters should be added to the draft for comments: "Procedures for expropriation and demolition of houses on collective land and compensation and resettlement"; Procedures for House Transfer and Demolition on Collective Land and Compensation and Resettlement
The exposure draft limits the scope of house expropriation to "state-owned land", but at present, a large number of house demolition problems involving urban collective land are not within the scope of the exposure draft. This is a major flaw and problem in the draft for comments. House demolition on collective land cannot be a corner forgotten by law. In the process of urban-rural integration, the problem of house demolition on collective land cannot be avoided.
In fact, in recent years, due to urban expansion, a large number of tragic demolition disputes have occurred on the collective land in the urban-rural fringe, which has triggered many mass incidents. Such as the "Tang Fuzhen self-immolation" incident in Chengdu that shocked the whole country. Houses demolished by violence are built on collective land.
However, the "Draft for Comment" did not include the house demolition on urban collective land in its provisions. The self-immolation incident in Tang Fuzhen led to the revision of the demolition regulations, but it could not solve the problem of house demolition on collective land caused by the self-immolation incident in Tang Fuzhen. This is a great disregard for "life" in the draft for comments!
Therefore, please attach great importance to the central leadership of the State Council. The new demolition regulations must include the demolition of houses on urban collective land, aiming at solving the serious problems existing in the demolition of houses on collective land in reality.
At present and in the future, the main contradiction of urbanization in China is still the contradiction between urban and rural areas. The specific performance is mainly the contradiction between government land acquisition and citizens' protection of land and housing property rights. Nowadays, in the name of government land reserve, many local governments forcibly expropriate land from farmers at low prices and transfer it to developers at high prices. If the house demolition on collective land is not protected by laws and regulations, the contradiction of house demolition on collective land will intensify! I would like to ask the national legal elite, what is the reason for excluding the house demolition on urban collective land from the "Draft for Comment"? Is it necessary to let more people who have been demolished embark on the road of "Tang Fuzhen's self-immolation"?
China's Urban and Rural Planning Law has broken the dual planning and design of urban and rural areas in the past. However, the draft for comment still maintains the legislative concept of artificially dividing "state-owned land" and "collective land" in the process of expropriation and demolition, which is no longer in compliance with the law. The provisions of the land management law apply to house demolition on collective land. It is suggested that the land management law be added to the first article of the exposure draft as one of the legal basis for house demolition on collective land.
The Land Management Law stipulates the compensation and resettlement subsidies for collective land expropriation, and has specific calculation standards. But so far, there is no unified compensation policy for farmers' building demolition on the homestead caused by collective land expropriation. Therefore, for a long time, the house demolition on a large number of collective land in China was in a chaotic situation that could not be followed. Houses on collective land are only regarded as appendages of collective land expropriation. Therefore, the independent nature of citizens' housing property on urban collective land and the independent nature of housing property on urban state-owned land should be treated equally, both of which are protected by property law. So as to realize the consistency, fairness and justice of the application of the law on house demolition on urban state-owned land and collective land.
The demolition of houses on urban state-owned land is limited, and most of them are demolished in the large-scale transformation of old cities and shanty towns in recent years. The rest will be demolished crazily before the introduction of the new demolition regulations in the State Council. In other words, the promulgation of the new demolition regulations in the State Council is the end of large-scale house demolition on urban state-owned land. At present, the trend of urbanization in China is to demolish a large number of houses on collective land around the city. It is conceivable that house demolition on urban collective land will continue to face various tragic events and group disputes such as barbaric demolition and violent demolition that cannot be relied upon.
In fact, as long as the procedures of collective land expropriation as state-owned land are completed according to law, collective land will be converted into state-owned land, and the procedures of house demolition and compensation and resettlement should be consistent in applicable law. This is not difficult for legal experts involved in the revision. Never adopt the old legislative attitude and use various excuses to embarrass the people.
Therefore, it is suggested that two chapters should be added to the draft for comments: "Procedures for expropriation and demolition of houses on collective land and compensation and resettlement"; "Housing transfer and demolition procedures and compensation and resettlement on collective land".
Three. It is suggested that "the need of public interest" in the draft for comments be changed to "the land for public interest".
The "need of public interest" mentioned in the draft for comment should be set according to the content of Article 42 of the Property Law. However, people all think that the property law has no teeth and lacks maneuverability. The key problem is that "public interest" is not clearly defined, and citizens' right to use private houses and homesteads has become the object that the government can levy. "Property Law" has also become the "law without power" dubbed by ordinary people. If the draft does not clearly define the specific scope of "public interest" in this Ordinance, the new demolition regulations will eventually leave loopholes, traps, hidden dangers and more contradictions and disputes. Therefore, accurately and specifically defining the scope of "public interest" is the key to the success or failure of the revision of the demolition regulations.
The purpose of "the need of public interest" is to demolish houses and obtain land use rights. "The need of public interest" refers to "land use". Fortunately, Article 6 of the Urban Real Estate Management Law authorizes the State Council: "The specific measures shall be formulated by the State Council".
Therefore, it is more specific and accurate to change "the need of public interest" to "land acquisition for public interest". This is the premise of defining specific public welfare land construction projects.
4. It is suggested to add two chapters to the draft for comments: "Procedures for the transfer and demolition of houses with non-public interests"; "Non-public interest housing transfer and demolition compensation and resettlement".
There are 42 drafts for comments, 40 of which are used for urban house demolition, which only accounts for 30% of the public interest. In urban housing demolition, 70% of non-public interests need land for housing demolition, which is only stipulated as one in its supplementary provisions. Moreover, it is stipulated in this article that the demolition of houses that need land for non-public interests must also be "reported to the house expropriation department for approval". This provision violates the precedent. According to the property law, only land used for public interests is related to expropriation. Non-public interest land does not belong to the category of "expropriation". Why should it be reported to the house expropriation department for approval? There should be no such low-level legal mistakes in the draft for comment.
The "Draft for Comment" is limited to the legislation of house expropriation and demolition with "public interest land", and the concept of "expropriated person" is replaced by "demolished person". Thus avoiding the main contradiction between house demolition and "non-public land". However, a large number of mass incidents such as illegal demolition, barbaric demolition, violent demolition and various contradictions and conflicts are mainly caused by the forced demolition of houses by developers in the commercial construction of "non-public interest land" with the help of local governments.
Because non-public interest land transfer and demolition are civil legal relations, transfer and demolition are equal civil subjects, and both parties are equal and voluntary in the relationship of housing transfer and sale. According to the provisions of the Contract Law, the transferee and the demolished shall sign a compensation and resettlement contract for house transfer and demolition on the basis of equality, voluntariness and consultation.
Some legal experts say that the expropriation of houses for the public interest is an administrative legal relationship; Housing demolition on non-public interest land is a civil legal relationship, and whether the same law is applicable to two different legal relationships remains to be studied. But the common people ask, why are criminal proceedings and civil proceedings two different legal relationships, and civil proceedings can be attached to criminal proceedings? Don't the living want to be suffocated by urine!