违法建筑的占有权益及其拆除补偿论

The Possession Interests and Compensation for Demolition of Illegal Buildings

我国现行法对违法建筑的拆除补偿持否定态度,但违法建筑人对违法建筑应享有占有权益。应当根据违法建筑的不同类型对其拆除补偿作出相应规定。出于对公民信赖利益的保护,拆除历史遗留的违法建筑应当按照市值予以补偿;基于"对人补偿"理念以及对公民信赖利益的保护,拆除实质性违法建筑应当予以适当补偿;出于对公民住宅权的保障,拆除居住用途的违法建筑,应当先进行安置并给予适当补偿。

China＇s existing laws hold a negative attitude on the compensation for the demolition of illegal buildings, but the possession interests of possessors of illegal buildings should be protected. The provision of compensation for demolition of illegal buildings should be enacted based on the type of illegal buildings. To protect citizens＇ reliance interests, possessors of demolished historical illegal buildings should be compensated according to the market value of the building; according to the compensation for the people theory and the protection for reliance interest of the citizens, possessors of demolished of substantive illegal buildings should be compensated in accordance with a certain compensation; in order to protect citizens＇ dwelling rights, one of citizens＇ fundamental rights, possessors of demolished residential illegal buildings should be resettled in advance and compensated appropriately.