拆迁乱象的根源分析与制度重整

《国有土地上房屋征收与补偿条例》规定的以司法强拆取代行政强拆的制度难负众望,因为法院缺乏保持司法中立的制度性保障,同时又缺乏对作为拆迁根据的法规、规章等违法性"法律"进行解释和审查的权力。司法强拆并不能终结拆迁悲剧。解决拆迁问题的关键是对被拆迁人作出公平、合理的补偿,这就要求必须从补偿范围、补偿标准、补偿形式等各方面全面调整目前的拆迁制度设计,特别是要对土地使用权的价值作出补偿。从深层次上说,解决拆迁问题必须解决土地征收背后的财政、人事等体制性根源,并推进、深化司法与政治体制改革。

Analyzing the Root of the Disorder Phenomenon of Demolition and Relocation and System Reconstruction

The revised Regulation on the Expropriation of Buildings on State-owned Land and Compensation,which provides that the building expropriation decision shall apply to the people’s court for enforcement,not execute by the admimistrative agencies themselves as before,is hard to make good effect,because it is difficult to remain neutral and impartial between citizens and government for the people’s court,owing to lack of effective safeguard mechanism in China’s justice system.That means that forced demolition by court cannot end the tragedies happened frequently during the process of eminent domain recently years in China.In order to solve the problem,the most important measure is to provide just and reasonable compensation for the owner.It is required that the current system of relocation should be have across-the-board adjustment,especially the right to use the land of the building owner shall be provided for just compensation.Ultimately,the hidden cause,the current financial system and personnel system behind land eminent domain,should be changed.In addition,the reform of justice system and political system should be promoted deeply as well.