城市房屋拆迁法律性质之定位

The Legal Essence of Urban Housing Demolition and Resettlement of Those Whose Houses Being Demolished

我国现行的《城市房屋拆迁管理条例》不仅存在若干内容与上位法相抵触的问题,而且模糊了房屋拆迁的法律性质。政府一方面实际主导着拆迁,另一方面又不承担拆迁人应有的法律义务。政府、拆迁人与被拆迁人之间的关系含混不清,是造成被拆迁人处于不利地位的根本法律原因。法律修改的首要问题在于理顺拆迁法律关系,明确房屋拆迁的行政征收性质,依此对房屋拆迁各方的权利义务进行重新配置。政府作为行政征收人直接承担对被拆迁人履行拆迁程序、拆迁补偿等方面的义务。

The existing Regulations for Management of Urban Housing Demolition and Resettlement of Those Whose Houses Being Demolished not only contradict with the laws more authoritative and more potent in contents, but also obscure the nature of housing demolition. On the one hand, the government controls the demolition, and on the other hand it refuses to bear the responsibility that a real estate developer should take under laws. The relations among the government, the real estate developer and those whose houses are demolished are unclear, which is held the main reason why the demolished are put in a disadvantageous position. While revising the laws, the primacy is to clarify the legal relations and hold the demolition an administrative expropriation, only under which can the rights and obligations of each party in the demolition be well determined. Being held the administrative expropriator, the government shall directly undertake the obligations to perform the demolition procedures and compensate those whose houses are demolished.