Demolition is still "hot" Housing expropriation and compensation regulations are still controversial.

How to define the public interest and how to supervise the forced relocation

Many disputes in the regulations on compensation for Housing expropriation are unresolved.

Our reporter Wang Yijun

13437 person-times, which is the total number of people browsing or expressing opinions on the regulations on Housing expropriation and compensation on State-owned Land (draft for soliciting opinions) (hereinafter referred to as "expropriation regulations") on the official website of the Legislative Affairs Office of the State Council within 15 days from January 29 to February 12, which is by far the largest number of participants in the administrative legislation of the State Council in soliciting public opinions.

"without public interest, there is no expropriation, without reasonable compensation, there is no expropriation, without expropriation and compensation, there is no demolition, and without a court decision, there is no compulsory demolition." This is the principle of the rule of law that must be followed in the act of expropriation and demolition stipulated in the Constitution and property Law of our country. A reporter from the China Youth Daily recently interviewed experts and scholars who proposed changes to the Legislative Affairs Office of the State Council, as well as some lawyers engaged in the legal practice of demolition, and held a more consistent view that the general direction of the expropriation regulations better embodies these principles, but there is still much to be improved from truly realizing the behavior of the three different stages of "expropriation, compensation, and demolition" and always running on the track of the rule of law.

Controversial article 40: whether the scope of adjustment of the expropriation regulations should include demolition not in the public interest

At two previous legislative seminars held by the Legislative Affairs Office of the State Council, the participating experts firmly opposed the inclusion of the regulations, but they finally wrote Article 40 of the draft for soliciting opinions, which met with almost one-sided opposition in the process of soliciting opinions.

At the beginning of the consultation meeting on expropriation regulations held by the Professional Committee of Administrative Law of the all-China Law Association on February 7, Article 40 was severely criticized by most of the lawyers present.

Wang Ling, a lawyer at Beijing Cailiang Law firm, believes that the expropriation regulations clearly define the scope of adjustment, that is, for the needs of the public interest, the legal act of expropriating the houses of units and individuals on state-owned land and giving compensation to the owners of expropriated houses, the draft for soliciting opinions spends most of its space on the expropriation activities carried out in the public interest. It is not appropriate to make specific provisions on the demolition of non-public interests in the expropriation regulations, and the demolition of non-public interests should return to the civil category of voluntary and equal consultation in accordance with legal provisions and with reference to international practices.

Shen Jie, one of the five scholars of Peking University who suggested that the standing Committee of the National people's Congress review the current regulations on the Administration of Urban Housing demolition, pointed out in the "eight proposals on expropriation regulations" that Article 40 is intended to avoid the dilemma of "no law to follow" in this work after the new regulations are promulgated, but it is suggested that this article be deleted and it is best to legislate separately.

Shen said that paragraph 2 of Article 40 requires the construction unit to work out an implementation plan for demolition and relocation and submit it to the housing collection management department for approval. however, since the government cannot carry out house expropriation for non-public interests, the house owner still has ownership of the house. why can the housing collection management department approve it? The expropriation regulations have abolished the demolition permit system in the old regulations. Will this approval become a "disguised" demolition permit?

In view of this, the National Law Association proposed in its proposal to the Legislative Affairs Office of the State Council that Article 40 be revised as follows: "demolition in the non-public interest shall be carried out in accordance with the General principles of the Civil Law, the property Law and the contract Law." Demolition which is not in the public interest shall not be forced to relocate. "

In addition to demolition not in the public interest, whether the adjustment scope of the expropriation regulations should cover the expropriation of houses on homestead is also the focus of this dispute.

Many lawyers believe that due to the Land Management Law and the implementation regulations, especially the compensation procedures, the expropriation of collective land pays more attention to the consideration of agricultural land, and the original regulations on the Administration of Urban Housing demolition clearly stated that only housing demolition activities on state-owned land should be adjusted. In practice, a large number of demolition and relocation problems of "villages in the city" have become a legal vacuum, and even some cities have stipulated by themselves that they do not carry out expropriation, examination and approval and compensation according to the Land Management Law. The "collective land house demolition system" which does not compensate in accordance with the market price standard of state-owned land and housing has caused a large number of social contradictions. To this end, they propose to further clarify the scope of application of the expropriation regulations, avoid expropriation on collective land from bypassing legal procedures, and suggest that Article 41 be changed to: for the sake of public interest, expropriation of the houses of units and individuals on collective land and compensation to the owners of the expropriated houses (hereinafter referred to as "the expropriated"). It shall be carried out in accordance with the legal procedures stipulated in the Land Management Law and the regulations for the implementation of the Land Management Law.

Chen Wenqing, a lawyer at the law firm of Liaoning think tank, does not approve of the inclusion of house demolition on collective land in the expropriation regulations. He believes that the government's expropriation of houses on collective land focuses more on protecting the subsequent livelihood of the expropriated, rather than the so-called fair sale based on the value of the house. The house demolition on the state-owned land and the collective land is different from the procedure, the purpose and the benefit compensation to the expropriated person, so it is not suitable to merge the two into one.

Sun Guangxiang, a lawyer at Tongyuan Law firm in Beijing, believes that there is no essential difference between housing expropriation on collective land and expropriation on state-owned land, and the value of the object of expropriation depends entirely on the real estate market price. the expropriation of farmers' residence itself does not give rise to the problems of job placement and social security, so it should not be dealt with differently.

The dispute over the definition of Public interest: whether "the Construction of Office Housing for State organs" belongs to the Public interest

Cao Kangtai, director of the Legislative Affairs Office of the State Council, has summarized the difficulties encountered in the formulation of expropriation regulations into three aspects, the first of which is how to define the public interest. The third article of the expropriation regulations defines the public interest for the first time in the form of enumerating and supporting provisions, but some of the listed matters belonging to the public interest have also caused considerable controversy.

How big is the scope of "national key support and integration into planning"? The lawyers attending the meeting believed that the wording of "key state support and inclusion in the plan" was not rigorous enough. Does the so-called support refer to the establishment of projects by the NDRC and other departments or to the state's industrial policies? Or is it a fully funded construction project? Does planning mean "urban planning" or "development planning"?

Experts and lawyers at the meeting also argued whether for-profit public utilities belonged to public interests. Xie Huiding, Chen Wenqing two lawyers and the Central University for Nationalities Law School professor Xiong Wenzhao think, In the market economy conditions, With the diversification of investment subjects, According to the state investment or private capital investment to judge whether public welfare undertakings have been unrealistic, Xiong Wenzhao even think, Commercial real estate development as long as can improve the living level of the masses and urban environment, Is not public interest. Non-profit construction (such as urban green space), which is traditionally regarded as public interest, cannot be regarded as public interest if its utilization rate is too low and causes unnecessary financial burden.

The expropriation regulations stipulate that the construction of office buildings for state organs belongs to public interests, and the lawyers attending the meeting argued fiercely about this. Zhou Yong, a lawyer from Jiangsu Zhou Yong Law Firm, believes that it is necessary to clarify the approval authority of "construction of office buildings for state organs" included in the public interest, and it cannot be said that building houses by government organs is public interest. Sun Guangxiang directly denied that the office space of state organs is a public interest, believing that any person and unit have the need to improve working conditions, and cannot become a public interest just because it is a government official working in it. Several lawyers expressed concern about the reality of taking a bus with "office space" and falsely calling it "training center, conference center" and "entertainment place such as hotel, vacation and leisure."

How to avoid going through the motions of "argumentation meeting" and "hearing meeting"

Lawyers attending the meeting believed that the provisions on expropriation procedures in the expropriation regulations need to be improved. Articles 9, 10 and 12 of the regulations stipulate the argumentation and hearing procedures before the expropriation decision is made, but these provisions are not detailed enough and the operability needs to be strengthened. First of all, the way to solicit opinions is not clear, for example, the "other ways" stipulated in Article 10, there is no clear legal way, the people's right to know, the right to defend is difficult to be guaranteed. Secondly, there is no quantitative index for what is a "major dispute", and the power of interpretation lies with the local government, which makes it difficult for the public opinion to be respected and makes it difficult to implement the legislative intent of the provision. Third, the settlement mechanism of major disputes is only reported to the higher government for adjudication, and the power to determine public interests is still handed over to the local government, rather than introducing the decision-making or judicial mechanism of the National People's Congress. Finally, the procedure of the hearing is not clearly defined, for example, the proportion of participants in the hearing and the way to determine the participants are not clearly defined.

In addition, most of the lawyers attending the meeting thought that the phrase "hearing public opinions through argumentation meetings, hearings or other forms" in Article 10 was too vague and should be strictly stipulated as "holding hearings." It further stipulates that "the number of representatives of the expropriated persons participating in the hearing shall not be less than 5% of the total number of expropriated persons and not less than 70% of the number of representatives attending the hearing." The representatives of the expropriated persons shall be elected by the expropriated persons who have registered for the meeting; if they cannot be elected, they shall be determined by random drawing." "The local people's government at or above the county level shall, within 15 days of the hearing, notify the hearing representatives in writing of the acceptance and non-acceptance of the opinions of the requisitioned person, the public and experts, and the reasons therefor, and make a public announcement. No expropriation decision shall be made without notification or announcement."

The lawyers attending the meeting all believed that the "major dispute" in Article 12 should be further explained to avoid giving too much discretion to the expropriation authority. If more than 15% of the representatives at the hearing oppose the expropriation, it should be regarded as a "major dispute".

How to compensate: Can the house and land be compensated separately?

Scholar Qiu Feng wrote that the essence of house transfer in cities is the transfer of land property rights. What is really valuable is not the house, but the land occupied by the house. The essence of expropriation is also that the government purchases the property rights of citizens to the land occupied by their own houses with the help of compulsory power. What the demolition people want to obtain is not the houses, but the land occupied by the houses, more precisely, the construction and use rights of the state-owned land occupied by the houses.

However, the demolition system of our country is based on this confused concept, resulting in various problems. For example, the compensation standard for assessing demolition is an assessment of what? The price of the house? How much can a house cost? Avoiding land ownership has become a powerful means for some local governments and developers to lower compensation standards. This is the root cause of disputes and conflicts caused by demolition, and the collection regulations must go out of this misunderstanding.

It is reported that Judge Liu Xing, who has worked in the administrative court of a grass-roots court in Beijing City for 10 years, submitted a proposal for revision of the expropriation regulations to the Legislative Affairs Office of the State Council before the Spring Festival, arguing that the monetary compensation amount stipulated in the draft for comments should be determined according to the location, use, building structure, old and new degree, building area and other factors of the expropriated house, according to the real estate market appraisal price; If a house is expropriated, the right to use state-owned land shall be recovered according to law.

"How to compensate after it can be taken back according to law, but the regulations don't say." Liu Xing believes that according to the continuation of the old regulations, this provision cannot solve the problem. House is a house, land is land, only clear how to compensate the house, how to compensate the land, disputes can be reduced, the basis for handling disputes can be clear. He suggested that legislation should classify compensation for land use rights as a separate item for evaluation and compensation. What content this item contains must be cautious.

In the face of forced relocation, can legal relief and administrative supervision be effective?

Forced demolition is one of the most intense social conflicts in recent years. The expropriation regulations basically copy the provisions of the Regulations on the Management of Urban Housing Demolition in terms of the conditions and procedures for the implementation of forced relocation, but only change "demolition" into "relocation". Experts and lawyers at the meeting believed that if forced relocation was not strictly regulated, the so-called democratic decision-making and due process would be difficult to achieve results.

According to the expropriation regulations, the expropriated person may bring administrative reconsideration and litigation against specific administrative acts such as expropriation decisions and compensation decisions, but there is no clear stipulation on whether to stop the implementation of the administrative act during the reconsideration and litigation period.

In the demolition lawsuit at the same time, the house may be legally demolished, so, what is the point of litigation? The lawyers present at the meeting suggested that if they were not satisfied with the compensation decision, the enforcement of compulsory relocation should be suspended during the period of administrative reconsideration or litigation. If it is really due to the urgent need of the public interest, the implementation of the compensation decision may not be suspended. If the compensation decision is confirmed as illegal by the reconsideration organ or the people's court, the local people's government at or above the county level that made the housing compensation decision shall compensate the loss of the expropriated person and bear other corresponding legal liabilities.

The execution of specific administrative acts shall not be suspended during the proceedings, as stipulated in Article 44 of the Administrative procedure Law.

"taking advantage of the opportunity of this expropriation legislation, if the principle of suspension of enforcement during litigation can be established, only when major public interests are involved, can the collection organ apply to the court for permission to execute and bear the burden of proof, and the court will make decisions on the basis of weighing public and private interests. In this way, the court will be very strict with the application of the collection organ, which will help to protect the legitimate rights and interests of the demolished person. "

Paragraph 3 of Article 44 of the Administrative procedure Law stipulates: "if the execution is suspended according to the provisions of laws and regulations, the execution of specific administrative acts shall be suspended." According to this, Liu Xing believes that the current "Administrative Litigation Law" has reserved a "window" for stipulating that "litigation should be suspended."

"Unfortunately, this window has been ignored by people, and few laws and regulations have activated this sleep clause." Liu Xing said: since the formulation of the expropriation regulations is guided by the spirit of legislation to protect the interests of the expropriated person, it is entirely possible to make use of this "window" to make a "fundamental change" to the existing regulations, that is, on the issue of compensation for expropriation for demolition and relocation, establish the principle that enforcement shall be suspended mainly during the period of litigation and supplemented by the court in accordance with the application of administrative organs for approval of enforcement.

In terms of administrative supervision, the lawyers present at the meeting thought that the regulations on expropriation were too vague. For example, the "report to the relevant people's government, housing collection department and other relevant departments" in Article 7, in which the "housing collection department" is the main body of the expropriation activities and is most likely to "violate these regulations". The remaining two "relevant" are also very unclear, and there is no maneuverability in practice, which will only lead to wrangling between government departments and the fatigue of the expropriated.