试论行政补偿

行政补偿的实质在于调和私有财产权与公共利益的关系;它不应属于行政法责任,而是一种具体行政行为。判断公共利益应考虑国家发展目标、事业的公益性、受益对象数量、效益与损害的比较、正当法律程序等因素。城市房屋拆迁分为行政拆迁和商业拆迁,行政拆迁是政府对城市土地的征收或者征用,商业拆迁是拆迁人通过自由买卖而收购土地使用权的行为。目前应严格区分行政拆迁和商业拆迁,分别适用不同的调整方法和补偿规则,寻求相应的救济途径。

On Administrative Compensation

The substance of the administrative compensation is to adjust the relation between property right and public interest. It is not an administrative burden but a specific administrative act. Public interest should be judged according to the goal of a country's development, the public quality of the cause, the number of beneficiaries, the comparison between benefits and damages, due process and so on. There are two kinds of housebreaking in the city: administrative housebreaking and commercial housebreaking. The former is a governmental deed to take or expropriate the land in cities, while the latter is a contract deed between the buyer and the house owner. We should make a strict differentiation between these two kinds of deeds, apply different adjusting measures and compensation rules and seek appropriate redressing way.