1. On Compensation for the State-owned Land Use Right in Housing Expropriation.
- Author
-
Jin Weifeng
- Subjects
LAND use laws ,EMINENT domain ,PROPERTY rights ,HOME ownership - Abstract
This paper is focused on the related provisions of the Regulation on Expropriation and Compensation of Houses on State-owned Land. According to Article 13(3) of the Regulation, the state-owned land use right shall be taken back at the same time when the house is legally expropriated. However, the Regulation has stipulated the taking back of state-owned land use right in housing expropriation without any clear stipulation on the compensation for the advance withdrawal. Although factors such as geographic location should be taken into account when the house is assessed, in fact there is no such value assessment specifically aimed at the state-owned land use rights. When it comes to the state-owned land other than the land for houses, it is even harder for owners to get the market price compensation. Apparently, it is neither in conformity with the principle of justice, nor conducive to protect the legitimate rights of the owners. It is, undoubtedly, an urgent problem whether compensation should be offered and how to carry it out when . the house is legally expropriated and meanwhile the state-owned land use right is taken back. First, based on the problems raised, the paper analyses the effect of housing expropriation when the use right of state-owned land is taken back ahead of schedule. According to the law, state-owned land is not an object to be expropriated, but the necessary conditions of taking back the land use right like the public needs and compensation are substantially the same as expropriation ahead of schedule, and their legal effects are similar to expropriation. Therefore, taking back the state-owned land use right ahead of schedule in housing expropriation is in essence the expropriation of property right. The compensation system of property collection, which has been stipulated in the Constitution of the People's Republic of China and relevant laws, has not only its constitutional grounds, but also specific legal basis. This paper discusses the scope and standard of compensation for the state-owned land use right in housing expropriation. It is explicitly proposed that the investor's investment and development interests and the expected future value of his/her land should be included in the scope of compensation in addition to the refund of the remaining life of his/her land use right when the state-owned land use right is taken back ahead of schedule in housing expropriation. The three kinds of compensation are independent of one another, and comprehensive and unified regulation needs to be formulated to determine the scope of compensation. As for the standard of compensation, the paper proposes that: first of all, a separate assessment system should be established, that is, the assessment of house ownership and that of the land use right should be separated so that the ownership of house and that of land use right can be assessed, calculated and compensated separately; second, the formulation of compensation standard should be based on the different ways that to state-owned land use rights is acquired, namely, ways of selling and ways of allocation. For land selling, factors such as land use, geographic location, and remaining land-lease period should be taken into account to determine the compensation standard. For land allocation, factors like land development cost paid by land users should be considered. In addition, whether the land development cost is paid or not, it is necessary to establish the benefit-sharing system for the value-added part of the land. [ABSTRACT FROM AUTHOR]
- Published
- 2013
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