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Whether the yards and vacant land within the scope of house expropriation should be compensated

Information source: Time: 2020-03-11 13:18:09

Millennium Tongzhou vitality north stream

I. The case Wang has an ancestral home, which was confiscated during the socialist transformation. After implementing the policy, the property was sent back to Wang. The house has two floors of 116 square meters each, and there are two courtyards of 128 square meters in front of the room and 83 square meters behind the room. Housing land title certificate is complete. In December 2003, the house was included in the scope of demolition. The demolition and inviting offices are evaluated by the evaluation agency. The evaluation agency only evaluates the house and does not evaluate the open space. The demolisher also does not agree to compensate the vacant land, and the two parties have not reached an agreement on compensation and resettlement. The demolisher then applied for a ruling to a city's urban demolition office. The demolition office has ruled that no compensation shall be given to the courtyard or open space. He was dismissed and moved to Wang, who appealed to the court.
Analysis
The focus of this case is whether the yards and vacant land in the demolition area should be compensated. There are two different views on this issue: One view is that courtyards and open spaces have use value and should be appropriately compensated. Another view is that the "Regulations on the Management of Urban House Demolition" does not provide for compensation for courtyards and open spaces, so compensation should not be provided.
The author agrees with the first view, for the following reasons:
(1) There is sufficient legal basis for compensation for courtyards and vacant land. 1. The "Land Management Law" has relevant provisions on the recovery of land use rights. Article 58 of the "Land Management Law" states: "The land administration department of the relevant people's government may report to the people ’s government that originally approved the use of the land or the people ’s government that has the right to approve, and may recover the state-owned land use right: Interests need to use the land; (2) For the implementation of urban planning for the reconstruction of the old urban area, the use of land needs to be adjusted; ... if the state-owned land use right is recovered in accordance with the provisions of paragraphs (1) and (2) of the preceding paragraph, the land use The right holder should give appropriate compensation. "At present, most of the urban house demolition is the government to recover the land for the public interest or to adjust and use the land in order to implement the transformation of the old city. Suffered losses. Therefore, the author believes that the "Land Management Law" legally sets the right to compensation for the owners of the right to use the courtyards and open spaces during demolition. In the process of demolition, the demolition of the courtyards and open spaces should be provided in accordance with the law make up. 2. The "Regulations on the Management of Urban House Demolition" imply related regulations. The new "Regulations on the Management of Urban House Demolition" (hereinafter referred to as the "Regulations") have been implemented for almost three years, but some people still lack a correct understanding of the relevant provisions. When dealing with disputes over compensation for demolished houses, the relevant regulations Does not apply correctly. The main issues are:
(1) Article 2 of the "Regulations" stipulates: "These regulations apply to the implementation of house demolition on state-owned land in urban planning areas, and compensation and resettlement of the demolished are required." According to this article, some people believe that urban house demolition Issues involving monetary compensation should be based on the "Regulations", which are compensated if there are compensation standards in the Regulations, otherwise they will not be covered. The "Regulations" did not mention the issue of compensation for courtyard vacant land, so it should not be compensated. This view is the reason for no compensation for courtyards and vacant land during demolition in many places. I believe that this understanding of the "Regulations" is one-sided.
There are many problems involved in house demolition, such as a series of problems such as real estate development and land management. It is impossible to solve all practical problems based on the "Regulations." One of the principles that the State Council adhered to when revising the Regulations in 2001 was to align with the relevant laws and administrative regulations, including the Urban Real Estate Management Law, the Land Management Law, and the Urban Real Estate Development Management Regulations. , "Contract Law", "Arbitration Law", "Administrative Reconsideration Law", "Administrative Penalty Law" related provisions. Therefore, the specific problems faced in urban house demolition should also consider whether there are relevant provisions in other laws and regulations. In addition, in terms of effectiveness, the "Regulations" are administrative regulations formulated by the State Council, the highest administrative organ in China, and the "Land Management Law" is a law formulated by the Standing Committee of the National People's Congress. Obviously, when applying the law, the relevant provisions of the Land Management Law must be considered first.
(2) Article 24 of the Regulations stipulates: "The amount of monetary compensation is determined based on the real estate market assessment price based on the location, use, construction area and other factors of the demolished house." Youjin believes that this article is the current currency for house demolition. Compensation standards, where location, use, and construction area are pricing standards, and construction area is the area on which the property rights are registered, excluding the courtyard area. I think this understanding is not thorough enough. In order to interpret this article correctly, the key is to find out what factors such as "other factors" should include. In the past, people often thought that it included the degree of newness of the demolished house, the status of its rights and interests, the form of building structure, the utilization rate, the floor, the orientation, etc .
These factors are generally considered in specific demolition. However, there is much controversy over the existence of courtyards and open space. The author believes that since the amount of monetary compensation is determined by the "assessment price of the real estate market", all factors that can affect the market price of the demolished house should be included. Because an important principle that the real estate market evaluation activity should adhere to is the substitution principle. This principle requires that the valuation result of real estate must not significantly deviate from the normal price of similar real estate under the same conditions. Similar real estate refers to real estate that is in the same supply and demand range as the valuation object, and has the same or similar location, purpose, building structure, and area of use as the valuation object. Then, when evaluating a house with a courtyard, the market transaction price of a house with a courtyard should also be selected as a reference. In the real estate evaluation, not only the house itself and the land occupied, but also the yard to be demolished and the ancillary facilities owned by it should be considered. Therefore, the "equal factors" in Article 24 of the Regulations should include courtyards and vacant land that have a significant impact on the value of the demolished house.
(2) The land use rights enjoyed by the demolished people over the courtyards and open spaces have been infringed and they should receive due compensation.
Compensation for the legally used courtyards and vacant land not only has sufficient legal basis, but also has a solid legal theoretical foundation. Although the demolished people do not enjoy ownership of the courtyards and vacant land used legally, they have the right to use. In the law of property rights, ownership and use rights can be separated. Therefore, when dealing with the compensation for house demolition, do not tie the two together. Simply consider that the demolished people do not enjoy ownership of the courtyard and open space, so they will not be compensated. In addition, if there is a right, there should be relief, and if there is a loss, there should be compensation. This is the most basic legal principle. Since the law grants the demolition to enjoy the right to use land, it should provide protection and relief for the exercise of this right. Rights are violated and compensation should be given.
There are two types of land ownership in our country, namely state ownership and rural collective ownership; legally, there are two types of land ownership, namely state land ownership and collective organization land ownership. 'Our law stipulates that urban land belongs to the state. However, Article 9 of the "Land Management Law" stipulates: "State-owned land and peasant collectively-owned land can be determined for use by units or individuals according to law ..." It can be seen that in China, state-owned land ownership and use rights can be separated.
State-owned land use right refers to a right enjoyed by non-owners on state-owned land. Its object of rights is urban state-owned land; its subject of rights is a specific citizen, legal person or other organization that enjoys the right to use state-owned land, while its subject of obligation is an unspecified person. The holder of the right to the use of state land shall have the rights to possess, use, develop, utilize and manage state-owned land in accordance with the law. These rights are protected by state law and no one may illegally interfere. Therefore, the state-owned land use right is a kind of other real right derived from the state land ownership, which has the characteristics of world right and exclusive right.
In urban house demolition, the demolisher demolishes the house and also damages the land use right of the courtyard and the open space behind the house. Therefore, the demolisher should compensate for this. The insistence that because urban land is owned by the state, compensation for courtyards and vacant land should not be compensated violates the principle of separating land ownership and use rights in China. This view is not only inconsistent with relevant laws and regulations, but also not conducive to protecting the legitimate rights and interests of users of state-owned land.
3. Legal thinking triggered by this case
With the development of urban construction in our country, the intensity of the transformation of old cities has been increasing, and disputes caused by house demolition have also increased year by year. All parties often cause fierce disputes over the compensation standards and methods of demolition and resettlement, and many of them involve the issues of courtyards and open spaces. Although some people who have been demolished have complete rights certificates of the land behind their houses, and enjoy land use rights in accordance with the law, such rights are difficult to protect during demolition. In many cases, the demolished people did not enjoy compensation for the courtyards and open space. How to effectively protect the land use rights from being demolished? The author believes that this problem should be solved from the following two aspects:
(1) Local regulations or administrative regulations shall clearly stipulate that the demolished person shall have the right to compensate the courtyard and the open space.
The current urban house demolition activities are mostly based on the "Regulations on the Management of Urban House Demolition" promulgated and implemented by the State Council in November 2001 as the highest level of normative basis for resolving disputes. However, the "Regulations" are relatively principled and lack operability, making it difficult to unify all demolition activities across the country. Therefore, in terms of demolition compensation and resettlement, it is often based on normative documents formulated by various local governments and even county governments. In terms of demolition compensation, these normative documents generally only stipulate the location, building structure, house type, actual new and old conditions, and building area of the house as factors to be considered, and rarely mention courtyards or open space. This has become an excuse for some demolished houses to not compensate the demolished courtyards and open spaces. Therefore, the local legislation on demolition needs to be further improved, and the demolition management regulations or rules in various places should clearly stipulate that the demolition will enjoy compensation rights for the courtyard and the open space. This is not only conducive to the unification of the legal system, but also enables the legitimate rights and interests of the demolished people to be properly protected.
(2) Formulate standards for compensation for courtyards and open spaces.
While stipulating the right to compensation for courtyards and vacant land to be demolished, it is necessary to determine the compensation standard. In this regard, some suggested that it should depend on the specific purpose; others suggested that compensation should be linked to land prices. The author believes that the former method can truly reflect the use value of courtyards and open spaces, but obviously lacks operability, because there are many ways to use the courtyards and open spaces for demolition, some plants and flowers, some parked vehicles, etc. It is difficult for the appraisal agency to grasp the specific situation, and the demolished person may make false reports in order to obtain more compensation. The latter method is relatively easy to determine the compensation amount, but it is not reasonable across the board, because the courtyard; the specific use of open space will bring different economic benefits to the demolished. Therefore, the author believes that an eclectic approach should be adopted, with the land price of the courtyard and the open space as the main consideration, and the specific use of the house. You can refer to the relevant land acquisition compensation policy to compensate the land users for a certain percentage of the estimated land value for the courtyards and open spaces, and at the same time, appropriately increase the compensation for some open spaces (such as parking lots) for special use according to their commercial value.

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