私有房屋拆迁补偿若干法律问题浅析——兼议国家征收中公共利益的界定

On some Legal Problems of Compensation for the Private Building Removal:Discussed the Definition of Public Interests in the National Expropriation

房屋拆迁补偿问题伴随着城市化的进程而产生并激化,房屋拆迁的本质是国家征收,其作为一种消灭房屋所有权的国家行为,因满足公共利益需要而合法化。通过对房屋拆迁和土地征收制度的基本理论进行阐述,着重介绍了国内外的相关规定以及对公共利益进行界定,认为应从立法、行政、司法三个层面对公共利益进行界定。此外,决定是否拆迁要严格区分公益用地和商业用地,并完善实体与程序保障机制。

The problems of compensation for the building removal were formed with the process of urbanization and became intensified. The nature of building removal was national expropriation which is a kind of national action that eliminated the house ownership and needed to be legalized duo to meet the demand of public interest. Through explain to the basic theory of building removal and land expropria- tion, the paper focused on introducing the domestic and overseas related regulations and defining the public interests. The paper considered to define the public interests from three layers which were lawmaking, administration and judicature. Besides that, to decide whether to remove should strictly distinguish the land for public interests and commercial land and improve the guarantee system of entity and procedure.