增减挂钩中房屋拆迁法律性质辨析:实然与应然

Legal Nature Analysis of House Demolition in“Linkage between Urban-land Taking and Rural-land Giving”

在梳理拆旧区房屋拆迁政策依据和实践现状的基础上,比较嘉兴姚庄镇、重庆市和成都市郫县三地增减挂钩和房屋拆迁模式异同;指出实然层面,目前的拆旧区房屋拆迁表现出行政行为与民事行为交织的特点,不同模式房屋拆迁性质处于"民事拆迁—行政征收"光谱的不同位置;应然层面,增减挂钩政策体现政府规划权,拆旧区房屋拆迁是规划权行使造成的农民私有财产减损,应将其界定为"管制性征收"并进行相应的制度与政策完善。

House demolition in the rural demolition area is one of the important tasks in the process of carrying out ＂Linkage between Urban-land Taking and Rural-land Giving＂. The legal nature of house demolition now in the pilot area is not clear, which results in the vagueness of legal status, rights and obligations and relationships of related groups such as governments and farmers. House demolition now is of no implementation standard. The study analyze the current policy about house demolition in the rural demolition area and compare three kinds of modes of carrying out house demolition. The paper proposes that the current demolition in these plots is with the features of civil conducts and the characteristics of administrative expropriation from the perspective of related policies and the current practice. Besides, the legal nature of house demolition in different modes is different with each other, distributing in the different positions in the spectrum of ＂civil Conducts-administrative expropriation＂. The article suggests that defining the house demolition as regulatory takings is of rationality.