德国土地征收补偿法律机制研究

Legal Mechanism for the Compensation for Expropriation of Land in Germany

德国土地征收制度以《基本法》第14条为出发点,以《建筑法典》中的土地征收规范为中心,并辅以《土地整理法》等特别法规定及各州的《土地征收法》,构成完整的体系。《基本法》确立了征收补偿的"权衡"原则,实际上以"交易价值"作为补偿标准。立法与实务的重点在于确定交易价值时查明是否存在需要加以扣除的被征收人的财产增值,以及因被征收人过错所可能导致的价值减损。征收补偿的范围包括征收导致的权利损失及其他后果损失。确定具体补偿额度首先需要确定相应的质量时点和价值评估时点,在这个基础上确定具体的评估方式和补偿方式。总体上说,德国的征收补偿标准确保了被征收人获得不多也不少的补偿,从而良好地在公共利益与个人利益之间作了平衡。德国的立法与实务可以为我国提供积极的参考。

Based on Article 14 of the Basic Law, the German legal propriation is centered on the Building Code, and complemented by many sp Land Consolidation Law. The Basic Law establishes the principle o priation, by taking ＂transaction value＂ as the compensation stand focus on such problems as whether the value that is increased after syste ecial m of land ex- laws, such as f fair compensation for expro- ard. Legislation and practice the expropriation or the value that is decreased due to the fault of the owner should be subtracted. The scope of compensation covers the loss of a right and other property losses. To decide the amount of compensation, it is necessary to first fix the time point for determining the quality and the value of the land and then determine the final methods for assessment of the value and methods of compensation. Generally speaking, German standards of compensation ensure that the owner be compensated no more and no less than he deserves, thus making a good balance between public and private interests. There are still many problems in the current expropriation system in China, such as the stand- ard, the scope of compensation, and the time for fixing the compensation. German legislation and practice may provide a positive reference for China in solving similar problems.