征收制度在我国的异化与回归
吴光荣征收制度在我国的异化与回归
Alienation and Return of the Land Expropriation System in China
期刊名称：《法学研究》
期刊年份：
作者：吴光荣
单位：国家法官学院
中文关键词：物权;征收;拆迁;公共利益;集体利益
英文关键词：property right;expropriation of land;demolition and removal of house;public interest;collective interest
中文摘要：
原《城市房屋拆迁管理条例》使我国的征收制度异化为解决城市发展所需用地的手段。《国有土地上房屋征收与补偿办法》努力使被异化的征收制度回归其本来面目，但仍然有其局限性。要使征收制度真正回归，不仅要改革现行的建设用地使用权制度，而且必须解决好城市非公益性的用地需求。非公益性的用地需求不仅可以通过一对一的协商机制来解决，在特殊情形下还可以通过民主表决的方式来解决，以降低交易成本与交易风险。通过集体利益适当限制个人利益，为以民主表决方式解决非公益性用地需求提供了理论基础。
英文摘要：
The Constitution and laws of China (made by NPC and the Standing Committee of NPC) stipulates clearly that the expropriation of land should be based on the need of public interest, but in practice, the expropriation of land is sometimes implemented for a non-public purpose. Thus the land expropriation system has been alienated to resolve the practical problem of meeting the land demand due to the development of cities and industries. This alienation stems from the characteristic land system and construction land use system in China. The Regulations on the Administration of the Demolition and Removal of Urban Houses demonstrates the alienation of land expropriation system in China, which has induced several social problems. The Regulations on the Expropriation of Houses on State-owned Land and Compensation Therefore has been issued by the State Council to reconstruct the system of land expropriation. However, it has its own defects and limitations, and many obstacles will be encountered in the process of its carrying out. To make the new system of land expropriation function well, we should not only reform the current construction land use system, but also take measures to satisfy the land demand for non-public interest.To meet the land demand for non-public interest, negotiation between two parties can certainly be used. But under certain special circumstances, voting by the related residents is also an alternative way and it is avail to reduce the cost and risk of the transaction. The theory that the majority's interest is superior to the interest of the minority lays the foundation of this way. Although majority decision can justify the collective interest of the related residents, the abuse of the majority decision should also be avoided.
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