New progress in the legislation of housing expropriation compensation public interest dispute to be determined by court

As to the definition of "public interest" and how to solve the dispute between the expropriation and the expropriated person on whether it belongs to the "public interest", these are the focus problems in the legislation of housing expropriation compensation, which has been paid more and more attention. Legal Affairs Office of the State Council held a second expert symposium on Compensation Legislation for housing expropriation. Jiang Minghan, a professor of law school at Peking University, attended by two symposia, said the latest version of the bill not only further improved the definition of "public interest", but also made it clear that administrative reconsideration or litigation could be instituted on the decision to levy, "which means that the determination of the ' public interest ' will be submitted to "Jiang Minghan that the latest edition of the state-owned land expropriation and compensation regulations (draft), compared to the December 16 version of the" state-owned land on the expropriation and removal of compensation regulations (draft), there are 5 points of progress. "　　But he also proposed nine points. The latest version of the progress of the draft, Jiang Minghan that the main embodiment in 5 aspects: first, further improve the "public interest" definition.　　The new regulation not only lists the "public interest", but also limits the scope of "public interest". Second, the collection decision can be sued or reconsidered.　　This means that the "public interest" of the determination, by the judicial decision, break through the past only to compensation, resettlement can be instituted reconsideration or litigation provisions. "This is very important because the public interest does exist in a vague area," said Professor Shen Yu, vice president of law school at Peking University. From the experience of the United States, the court also has a diametrically opposed verdict on the same matter. But it is very important for the Government to accept in court the question of whether the "public interest" is a challenge, and the government must prove where its ' public interest ' stands. "Third, the procedure has improved than in the past.　　For example, the relocation planning process has been increased, and the selection of the evaluation body is no longer set, but rather a number of assessment bodies are provided for the person to vote or draw lots to choose from, and no longer be decided unilaterally by the government. Four, the expropriated person's compensation method, now usually has only two choices, or currency, or property replacement.　　The new legislation has increased the selection of the relocation of the dangerous old house, and the choice of compensation plus the replacement of property rights.　　Five, in the legal liability, not only clearly to hold the government responsibility and the responsibility of the collection of management agencies, real estate evaluation agencies if the fraud, will be held accountable for legal liability.　　Professor Jiang Minghan very much cherish this forum opportunity, as always, put forward his own proposal: proposal one: Since the new version of the draft has set the relocation planning process, then the citizen participation should be included in the procedure, through the way of hearing or argumentation. Recommendation II: It should be further clarified in the legislation that an interested party has the right of representation, which is more important than the right to report.　　It is not enough for an interested person to have a right to report. Proposal three: Now a part of the house, only compensation for housing levy, this is not in accordance with the provisions of the law 148th, land use right should be compensated. For example, a house with 70 propertyThe relocation was requested in 20 and the land use fee for the remaining 50 years should be compensated; some houses are ancestral, and the government should compensate for the land use charges. As the 148th article of the Property Law stipulates: "Before the expiration of the right to use the construction land, because the public interest needs to recover the land in advance, it shall compensate the house and other immovable property on the land in accordance with the provisions of article 42nd of this Law, and refund the corresponding leasing." Recommendation IV: The transformation of dangerous old houses must be distinguished. The reasons put forward, one is that "unsafe" transformation can be included in the "Public interest", "Old House" transformation is not justified. Some people are willing to live in the "Old House", the government has no reason to forcibly relocate; second, the new draft stipulates that "the transformation of dangerous and old houses" must obtain the consent of more than 90% residents before the levy procedure can be initiated.　　This provision, the old house is no problem, up to 90% will not be demolished, but if there are some dangerous people do not agree with the "transformation", which will involve the maintenance of "public interest" problem, it must be a difference between the old and dangerous room treatment. Recommendation five: What is the difference in the housing price of a property replacement arranged by the government? The current practice is the old House for new house, the difference part of the people out. This is unreasonable.　　If it is by the people of their choice of property rights replacement, the difference of the ordinary people to dig this is no problem, but if it is the government arranged, the difference should be part of the government. Recommendation six: When an applicant applies for reconsideration or proceedings, he shall not relocate during the period of litigation or reconsideration unless there is a "public interest" emergency.　　Should avoid "win the lawsuit, but the house is still demolished" situation. Recommendation seven: In the case of transitional rehousing, if housing is accommodated by the government, it is usually not compensated.　　In this respect, or should be compensated for the point, because it may result in the imposition of people's work life inconvenience. Recommendation VIII: The new draft provides for the prohibition of brutal relocation, the prohibition of water, heat, breath, power outages, or by violence, coercion and other illegal means to carry out the relocation.　　It should be added to prohibit night and holiday relocation. Recommendation IX: The collection of houses are commercial, open a hotel or open a hotel, should provide a principle of compensation standards.　　For example, the average operating income of the previous three years as compensation. Legal Daily News Beijing January 21