Legal information

Social conflicts caused by demolition have become the largest number of conflicts in China. The legal solution to demolition conflicts is to work hard on fair and reasonable compensation standards. The core is to prevent the demolished people from feeling disadvantaged.

The article points out that social conflicts caused by demolition have become the largest number of conflicts in China. The common people think that "the money is not enough and the participation is not enough"; the government or real estate companies think that "the common people are unruly, keep raising prices, and do not sell no matter how much money is given, and even regret after selling." Both sides stand on their respective positions and refuse to give in to each other. However, the conflict over demolition is not a dead end and can be resolved through the rule of law. The basic principles of the rule of law involving demolition are: clarify the basic content of public interests and prevent "fishing in troubled waters"; second, try not to harm private interests as much as possible even for the public interest; third, compensate for the damage to private interests with the greatest sincerity; fourth, it must be implemented under the constraints of complex and transparent public participation procedures; fifth, all rights have a path to fair relief. To deal with demolition conflicts under the rule of law, we should focus on the following aspects.

The article stated that great efforts should be made to define the “public interest” as the prerequisite for expropriation. House demolition (except for illegal buildings) is predicated on expropriation; and expropriation is predicated on the need for "public interest". Various existing laws and regulations have yet to form mature theoretical standards for "public interests". The "Regulations on the Expropriation and Compensation of Houses on State-Owned Land" attempts to define the scope of public interests by enumeration, but the "needs for other public interests stipulated in laws and administrative regulations" as a blanket clause leaves a big hole. It is recommended to think more carefully about all public interest situations in house expropriation and eliminate other possibilities. The government, citizens and courts all use this standard to determine whether a house is within the scope of expropriation, which will help reduce commercial demolitions in the name of "public interest" from legal sources.

The article proposes that efforts should be made in planning rather than demolition. Demolition will move the most fundamental “cheese” of citizens—houses. Therefore, house demolition should be minimized in land planning. Scientific and reasonable planning should be a plan that reduces the occurrence of demolitions. Where urban planning is done well, there is a "question rule": What else does the planner need to do during the demolition? In other words, in urban planning and design, “imperial planning” can be achieved when demolition can be avoided. Demolition is the last resort, and it has to be done. More consideration should be given to the scientific nature of urban planning, and efforts should be made as much as possible on planning rather than demolition. The law should provide clear guidance on this point. This will lead to an urbanization path with as few demolitions as possible.

The article also pointed out that great efforts should be made on fair and reasonable compensation standards. Demolition requires fair compensation, and there are two opinions on what is fair. One view is that it is fully market-oriented and determined by the market; the other view is that land is owned or collectively owned, so compensation should be given after deducting the land value of the owner. The first opinion may cause property losses due to the inability to accurately assess market prices; the second opinion has produced many contradictions in actual operation. Even if the expropriation is for the public interest, the people will not accept it without reasonable compensation. Therefore, both opinions are actually too flexible to be practical. Looking at demolition compensation in various countries, it is almost impossible to have no problems at all, but the methods with fewer problems can be summarized as follows: the scope of compensation is broad and clear; the compensation standards are scientific and feasible; and the compensation methods are flexible and diverse. The core is to prevent the demolished people from feeling disadvantaged. The specific steps are:

First, try to clarify the scope of demolition compensation in a legal way as much as possible, and include everything that should be compensated. In addition to the normal scope, compensation should also include trees, rocks and soil, moving and renting a house, and even surrounding impacts, expected losses, etc. This money is "small money" for demolition, but it feels very standardized and leaves people speechless.

The second is the calculation formula of compensation. It is difficult to determine how much compensation is optimal. A set of detailed calculation methods is obviously applicable to all places. Each region in China has stipulated its own calculation standards, from which a more reasonable calculation formula can be selected. Unification can avoid "jealousy" and unnecessary disputes.

The third is flexible and diverse choices. For example, in Japan, in addition to cash compensation, land acquisition compensation methods can also adopt alternative land compensation, relocation agency and project agency compensation, etc. my country's more successful models such as the "monetary compensation and resettlement with reserved land in parallel" model in Guangdong, the "active demolition and resettlement with retained property" model in Sanya and Lingshui, Hainan, and the "long-term living subsidy" model in the Handan Economic Development Zone in Hebei have all added alternative methods. Now it seems that in-kind compensation is more likely to be recognized by the people.

The article stated that in addition, after all, real estate is the largest asset for most people. To be cautious, fourth and fifth party evaluations can be cited in the price evaluation of real estate. That is, if the third-party assessment invited by the demolishing party cannot be trusted by the demolished party, the demolished party can invite a fourth party to conduct an assessment. If the assessment gap is huge, the court handling the dispute can invite another party to conduct an assessment and determine the property value. Germany takes this approach.

The article goes on to propose that great efforts should be made in the public participation process. The full participation of citizens is the best way to ensure that their interests are protected from undue infringement. On the one hand, public participation increases supervision; on the other hand, "when you become a householder, you know that firewood and rice are expensive", it can play a certain propaganda role among the masses. Therefore, it is necessary to stipulate in detail the procedures for citizen participation through laws, ensure that citizens are aware of it through various means, and invite them to participate with the greatest sincerity. Many have sincerely engaged citizens from the beginning of urban planning. During the land acquisition and demolition, we spared no effort in extensive publicity and consultation, and sincerely hope to gain everyone's support. Information disclosure is a common practice in all countries. After all, "sunlight is the best preservative and street lights are the best police." Pay attention to the supervision role of public opinion and draw public attention to possible corruption issues.

In large-scale public projects, a demolition and compensation committee or coordination group can be established, led by the government, inviting the expropriated people and the construction party to negotiate properly and propose a land acquisition compensation and demolition plan agreed by the three parties.

The written feedback mechanism for objections is an important way to ensure effective citizen participation. When citizens' different opinions are not adopted during planning and demolition, the reasons should be informed in writing. On the one hand, it gives citizens the reasons and basis for not being adopted; on the other hand, it helps to sincerely listen to different voices and prevent the abuse of power.

The article finally proposes that great efforts should be made in judicial relief. If sufficient efforts are made in the previous work, the interests of the vast majority of people will be protected and social instability factors will be minimized. But despite this, some people may still be dissatisfied, and some people may find it difficult to leave their homeland. what to do? On the one hand, demolition with inherent legitimacy should not be stalled by the emotions of individual people; on the other hand, they must be given relief and a place to reason.

The court is a better choice than the government or the petition department. , the court's own neutrality and relatively small risk; second, the scope of relief is extensive and exemplary; third, the relief results are mandatory and final. It makes up for many shortcomings of other social governance methods. The courts’ doors of relief must be kept wide open. Regardless of whether the government is right or wrong, the court cannot adopt an evasive attitude and must give the parties an "explanation." In order to effectively play the role of this social pressure reducing valve and balancer.

Although the above method will hurt efficiency, it is worth it compared with the consequences.