法学论文
The comparison of Sino-US collection system
作者：杜伟华 律师 时间：2012年07月10日
The land and housing levy triggered by a variety of disputes and
incidents is China’s current hotspot and difficulty. A variety of
analysis and discuss, to sum up, mainly in the following three
aspects. One is how to define the public interest, the second
is whether the compensation is fair. The third is whether the
procedure is just. Looking at these problems, people will naturally
ask: Since our country’s levy system is far from perfect, then in the
developed countries ruled by law, especially America, how to deal
with the levy problem? As following I attempt to make a comparison
on the land problems of three aspects of Sino-US collection system.
1、 the "public interest" v " public use"
The law of China originally only have the concept of "
commandeer"without" collection " .The 2004 constitutional
amendment is subdivided into two kinds of forms of expropriation
and requisition. Generally, the difference between the two lies in the
expropriation obtain ownership, requisition obtain use right.
Requisition of property shall be returned after use. Relatively
speaking, The United States didn’t distinguish in terms of these
two forms. Unified called “taking”.
In the law circle of China, the levy discussion of what constitutes
a" public interest" ,the basic ideas is that clearly define what is public
interest in law with enumeration method. The scholars holding this
views because of existing law of "public interest" undefined, so that
the "public interest" is a basket, whatever can be loaded, resulting
in a large number of land expropriation in the "public interest"
covering up private interests and business interests. This kind of"
public interest" is more in name than in reality, it is one of the prime
reasons of the justice in current land expropriation that be questioned.
Therefore, it must be clearly defined the public interest that must have
" public or related to the public use ". “Public use” is the key to
determine whether the United States government expropriation is
legitimate. The exploration on what is" public use" of the land is the
core of the research that often related to judicial and law. Since
modern times, the United States Court more and more to the use
of" generalized" definition, namely" public use" equal to" public
purpose". In "generalized" definition, as long as the government
reasonably believe in that the property levy will bring benefits to
the public, which can meet the requirements of" public purpose".
In order to meet the" public purpose", the government and the
public is not necessary to direct" occupied" or "use" of the
requisitioned property. The property from the part of human hands
and moved to another part of the hands can also achieve the
purpose of public interests.
2、 Compensation comparison
China's land expropriation compensation in accordance with
the" value multiplier method" to determine compensation,
compensation principle is to" maintain original living standard
of farmers". Land compensation costs include land compensation
fees, resettlement grants, green seedling and structures on land
compensation. Land compensation fees was a former three years
the average output value of the 6 to 10 times, resettlement fees for
the land was a former 3 years the average annual output value of
15 times, the total of land compensation and resettlement fees is
no more than 3 years prior to the expropriation of the land the
annual output value of 30 times. Only compensate on levied land
and other property is not enough. Insufficient compensation is
the crux of the problem in China. This" compensation", must be
defined as "just compensation". China’s current collection lack
of procedural justice, which should be have a short-term and long-term reform scheme.
The fifth term of the United States Amendment Constitution that
came into effect in 1791 regulate that "the collection for public use
must provide fair compensation", and almost all of the state’s
constitution before and after adding that the collection of private
property must provide compensation. "Fair compensation" is one
of the basic principles confirmed by the United States Constitution,
as well as the substantive constraints on the collection of the national
authority behavior. The Supreme Court’s cognizance of" fair
compensation" is according to" fair market value " to evaluate the
property owner's losses, because the property at a fair market
transaction will always produce a price," fair compensation" usually
refers to the prices reflect the fair market value.
3. Process comparison
China's land expropriation has roughly six steps: apply for land --
accept the application and review of relevant documents-- study out land requisition compensation and resettlement scheme--
approval of land -- implement and notice—registration and issue certification. In contrast to most foreign
countries’ land expropriation procedures, we can see that our land
acquisition missing two parts, one is the expropriated land obliges
didn’t join in the process of land expropriation, the second is
complaints procedure. In China, land expropriation is land transfer
of ownership, mainly in the government sector and as the owner of
the land in rural collective economic organization. The government in
the process of land expropriation plays a dominant role, while the
land expropriated peasants only have contracted management
rights in the land and unable to exert substantial influence in their
property rights in the process of land expropriation and. Because
of the natural relationship of administrative subordination in the
rural collective economic organizations and government departments
which makes it faithfully maintain farmer’s interest on ragged. In the
land requisition procedure farmers don’t have participation right, the
right to know and the right of appeal, resulting in serious violations
of the legitimate rights and interests of farmers.
The United States due process of law in expropriation fully embodies
the principle of separation of the three powers. First of all, as the
local legislature parliament authorize the local government in the
form of law to levy land, after the government obtains the authorization,
apply for implement towards the independent judiciary. After the local
court received government application and then check up the
reasons of government expropriation whether specific implementation
conforms to the" public use", whether the compensation is fair, whether
procedure is independent and legitimate. Obviously, such a fair and
scientific procedure as a restriction mechanism can effectively prevent
the abuse of government’s general right to levy.
Conclusion
First of all, China’s constitution authorize government levy power,
American’s constitution fundamentally restrict the government’s exist
levy power. The second, China’s government can expropriate or requisite
the land for the needs of public interest. America constitution use the words
of “public use” for the purpose of expropriate. The third, China’s constitution
regulate ”compensation” for the levied land. The United State’s constitution
explicitly required to “just compensation”. The forth, China’s current collection
lack procedural justice, which should be have a short-term and long-term reform scheme.
incidents is China’s current hotspot and difficulty. A variety of
analysis and discuss, to sum up, mainly in the following three
aspects. One is how to define the public interest, the second
is whether the compensation is fair. The third is whether the
procedure is just. Looking at these problems, people will naturally
ask: Since our country’s levy system is far from perfect, then in the
developed countries ruled by law, especially America, how to deal
with the levy problem? As following I attempt to make a comparison
on the land problems of three aspects of Sino-US collection system.
1、 the "public interest" v " public use"
The law of China originally only have the concept of "
commandeer"without" collection " .The 2004 constitutional
amendment is subdivided into two kinds of forms of expropriation
and requisition. Generally, the difference between the two lies in the
expropriation obtain ownership, requisition obtain use right.
Requisition of property shall be returned after use. Relatively
speaking, The United States didn’t distinguish in terms of these
two forms. Unified called “taking”.
In the law circle of China, the levy discussion of what constitutes
a" public interest" ,the basic ideas is that clearly define what is public
interest in law with enumeration method. The scholars holding this
views because of existing law of "public interest" undefined, so that
the "public interest" is a basket, whatever can be loaded, resulting
in a large number of land expropriation in the "public interest"
covering up private interests and business interests. This kind of"
public interest" is more in name than in reality, it is one of the prime
reasons of the justice in current land expropriation that be questioned.
Therefore, it must be clearly defined the public interest that must have
" public or related to the public use ". “Public use” is the key to
determine whether the United States government expropriation is
legitimate. The exploration on what is" public use" of the land is the
core of the research that often related to judicial and law. Since
modern times, the United States Court more and more to the use
of" generalized" definition, namely" public use" equal to" public
purpose". In "generalized" definition, as long as the government
reasonably believe in that the property levy will bring benefits to
the public, which can meet the requirements of" public purpose".
In order to meet the" public purpose", the government and the
public is not necessary to direct" occupied" or "use" of the
requisitioned property. The property from the part of human hands
and moved to another part of the hands can also achieve the
purpose of public interests.
2、 Compensation comparison
China's land expropriation compensation in accordance with
the" value multiplier method" to determine compensation,
compensation principle is to" maintain original living standard
of farmers". Land compensation costs include land compensation
fees, resettlement grants, green seedling and structures on land
compensation. Land compensation fees was a former three years
the average output value of the 6 to 10 times, resettlement fees for
the land was a former 3 years the average annual output value of
15 times, the total of land compensation and resettlement fees is
no more than 3 years prior to the expropriation of the land the
annual output value of 30 times. Only compensate on levied land
and other property is not enough. Insufficient compensation is
the crux of the problem in China. This" compensation", must be
defined as "just compensation". China’s current collection lack
of procedural justice, which should be have a short-term and long-term reform scheme.
The fifth term of the United States Amendment Constitution that
came into effect in 1791 regulate that "the collection for public use
must provide fair compensation", and almost all of the state’s
constitution before and after adding that the collection of private
property must provide compensation. "Fair compensation" is one
of the basic principles confirmed by the United States Constitution,
as well as the substantive constraints on the collection of the national
authority behavior. The Supreme Court’s cognizance of" fair
compensation" is according to" fair market value " to evaluate the
property owner's losses, because the property at a fair market
transaction will always produce a price," fair compensation" usually
refers to the prices reflect the fair market value.
3. Process comparison
China's land expropriation has roughly six steps: apply for land --
accept the application and review of relevant documents-- study out land requisition compensation and resettlement scheme--
approval of land -- implement and notice—registration and issue certification. In contrast to most foreign
countries’ land expropriation procedures, we can see that our land
acquisition missing two parts, one is the expropriated land obliges
didn’t join in the process of land expropriation, the second is
complaints procedure. In China, land expropriation is land transfer
of ownership, mainly in the government sector and as the owner of
the land in rural collective economic organization. The government in
the process of land expropriation plays a dominant role, while the
land expropriated peasants only have contracted management
rights in the land and unable to exert substantial influence in their
property rights in the process of land expropriation and. Because
of the natural relationship of administrative subordination in the
rural collective economic organizations and government departments
which makes it faithfully maintain farmer’s interest on ragged. In the
land requisition procedure farmers don’t have participation right, the
right to know and the right of appeal, resulting in serious violations
of the legitimate rights and interests of farmers.
The United States due process of law in expropriation fully embodies
the principle of separation of the three powers. First of all, as the
local legislature parliament authorize the local government in the
form of law to levy land, after the government obtains the authorization,
apply for implement towards the independent judiciary. After the local
court received government application and then check up the
reasons of government expropriation whether specific implementation
conforms to the" public use", whether the compensation is fair, whether
procedure is independent and legitimate. Obviously, such a fair and
scientific procedure as a restriction mechanism can effectively prevent
the abuse of government’s general right to levy.
Conclusion
First of all, China’s constitution authorize government levy power,
American’s constitution fundamentally restrict the government’s exist
levy power. The second, China’s government can expropriate or requisite
the land for the needs of public interest. America constitution use the words
of “public use” for the purpose of expropriate. The third, China’s constitution
regulate ”compensation” for the levied land. The United State’s constitution
explicitly required to “just compensation”. The forth, China’s current collection
lack procedural justice, which should be have a short-term and long-term reform scheme.
