土地征收征用中的程序失范与重构

规范征地权的关键是进行程序性制约。程序具有组织功能与校准功能,征地程序的设置实质上是一个促成征地关系主体讨价还价的过程,而价格目标则是趋于某一客观估价。财产权所具有的排他性受到征地权超越性的影响,无法从一般市场中的产权交易角度来评价征地补偿的正当性与效用。而程序性失权是当前征地权滥用的关键。中国征地程序规则失范突出表现在规范模糊与程序性权利无保障。应提高征地程序的公开性、引入程序违法的归责原则、将司法审查的时间提前,以实现征地秩序的合法、效用与安全目标。

The Injustice and Reconstruction of Procedures in the Eminent Domain and Land Taking

Eminent domain should be regulated, the key to which is procedural restraints. Procedure possesses the functions of organizing and adjusting, and the setup of due process claim in land taking serves to facilitate parties bargaining for an objective price of the land transaction. Since eminent domain prevails the exclusivism of property right, the transaction rule in the market is hardly plausible to assess the fairness of the compensation. Currently, the procedural injustice is the key to the abuse of eminent domain powers. The procedural deviation projects itself at the vagueness of relevant laws and the absence of guarantee of procedural rights. Thus it is proposed an institutional reform including procedural openness, introduction of liability for procedural wrongs and disposition of judicial review in advance, with the aim to guarantee the legitimacy, effect and security of the order of land taking.