论我国城市房屋拆迁补偿制度之重构

On the Reconfiguration of the Compensation System in the Urban Housing Demolition and Relocation in our Country

我国现行法对城市房屋拆迁补偿性质的定位存在着误区,表现在将补偿问题定位为民事法律关系。这种误区是导致补偿问题复杂难解的深层法律原因。拆迁补偿关系应该属于行政法律关系,拆迁补偿性质为行政征收补偿,政府才是真正的补偿义务主体,政府应直接对被拆迁人承担补偿义务。拆迁补偿应以公正合理补偿为基本原则,尽可能全面弥补当事人因公共利益而遭受的实际损失。仅就补偿标准而言,公正补偿应体现民法精神,但不可将其与民事赔偿简单等同。

The existing law in our country has a misunderstanding of the nature of the compensation problem in the urban housing demolition and relocation.Namely,our law defines this compensation as a civil legal relationship.This misunderstanding should be regarded as the fundamental legal reason led to the complexity and insolubility of the compensation problem.Compensation relationships in the demolition and relocation should belong to the administrative legal relationship,and should be considered as a kind of administrative imposition and compensation in nature.In fact,our government should be the real subject to undertake the compensation obligations directly to the dismantled whose house is removed and relocated.With fair and reasonable compensatory approaches as the basic principle,the compensation in the demolition and relocation should,as possible as it can and in an all-round way,make up for the actual loss of the dismantled,resulted by the implementation of the public interest.As far as compensatory standards are concerned alone,impartial compensation should embody the spirit of civil law,but should not be simply identified with civil compensation.