北京市城市改造所依据之规章的宪法学分析——以公共利益目的为视角

An Analysis on Regulatory Documents in Accordance with which the Reconstruction of Beijing’s Old City Towns has been Undertaken from Science of Constitution

以宪法中的公共利益条款为视角,分析2004年以来北京市在城市改造过程中所依据的规章,表明在《北京市国有土地上房屋征收与补偿实施意见》出台之前,北京市的城市房屋拆迁许可条件并不必然要求每一个强制性拆迁项目都出于公共利益目的;在没有清楚界定"公共利益"的情况下,这些操作性更强的许可条件就自然成为房屋征收程序中的具体指引,因而宪法中的"公共利益"要求在现实中很可能被忽视。

From the perspective of Science of Constitution, this paper analyzes those regulatory documents in accordance with which the reconstruction of Beijing＇s old city towns has been undertaken since 2004 and provides some credibly academic advices for Beijing municipal government in order to resolve social contradictions arising from reconstruction of old city towns and to promote social harmony and stability. The analysis result shows that the public interest is not prerequisite for all coercive demolition projects according to the permissive conditions of urban housing demolition in Beijing before Beijing Municipal People＇ s Government Implementation Opinions on the Expropriation of Buildings on State-owned Land and Compensation was promulgated. Without a clear definition of public interest, the more specific permissive conditions would be likely to become the guideline in the process of the expropriation of buildings, and therefore the requirement of public interest in China＇s Constitution might have been ignored in the real world.