司法强制搬迁及其完善

发布时间：2018-06-29 03:12

本文选题：司法强制搬迁 + 强制执行　；参考：《南京师范大学》2014年硕士论文

【摘要】：自2011年以来,《国有土地上房屋征收补偿条例》、《行政强制法》及一系列相关规定的陆续出台,在实践层面上构建了一种“行政机关申请,人民法院审查；行政机关执行为主,人民法院执行为辅”的司法强制搬迁制度。这一制度通过引入司法审查,改变了以往的行政机关“既做运动员,又做裁判员”的尴尬局面,将房屋强制征收的决定权改由人民法院行使：同时,新制度的另一大亮点在于将公共利益目的作为征收前提,并对公共利益的范围加以明确、细化,增加了实际操作的可能性,有利于更好地防止权力滥用和维护被征收人权益。但这一制度中仍有许多不足之处,如在具体执行主体规定方面,国务院出台的条例中要求由被征收房屋所在地的市、县级人民政府负责房屋征收工作,需要强制执行的,“申请人民法院执行”；但在最高人民法院出台的通知中,则要求具体执行工作一般应由行政机关执行,人民法院在一定情况下亦可负责具体执行工作,这一系列规定就导致了理论和实践上对执行主体理解的出入。另外,现行制度在公共利益界定方式、补偿机制、救济制度等方面的规定也有许多有待完善的地方。对此,笔者在分析现行制度的基础上,从征收决定的作出、补偿机制、执行程序三个方面对司法强制搬迁制度提除改进意见。在征收决定作出环节,笔者建议增设公共利益的司法界定制度,改变线形的由行政机关界定的制度；另外,笔者建议在征收决定作出前应充分考虑所追求的公共利益与将要“损害”的个人利益之间的比例,即明确比例原则在征收中的适用,与此同时对听证制度加以完善,以更好实现征收的公共利益目的,维护被征收人权益。对于征收补偿机制,笔者认为应当从适当扩大补偿范围和完善补偿标准两个方面加以完善,以从一定程度上缓解拆迁难的问题。对于执行程序,笔者从科学确定执行主体和增设执行中止两个方面提出完善建议,以期从制度层面确定强制征收领域的制裁分离制度,同时更好的维护被征收人权益。
[Abstract]:Since 2011, the regulations on the Collection and compensation of Housing on State-owned Land, the Administrative compulsory Law and a series of related regulations have been issued one after another. In practice, a kind of "administrative organ applies for examination by the people's court; the administrative organ is mainly executed," The people's Court shall enforce the system of judicial forced relocation. Through the introduction of judicial review, this system has changed the embarrassing situation in which the administrative organs used to be "both athletes and referees", and changed the decision on mandatory expropriation of houses to be exercised by the people's courts: at the same time, Another bright spot of the new system is that the purpose of public interest is taken as the premise of expropriation, and the scope of public interest is clarified and refined, which increases the possibility of practical operation and is conducive to better preventing abuse of power and safeguarding the rights and interests of expropriated persons. However, there are still many deficiencies in this system. For example, in the specific implementation of the main provisions, the regulations issued by the State Council require that the city where the house is being expropriated and the people's government at the county level be responsible for the collection of houses. "apply to the people's court for execution"; however, in the notice issued by the Supreme people's Court, it is required that the specific execution work should generally be carried out by the administrative organ, and the people's court may also be responsible for the specific execution work under certain circumstances, This series of regulations leads to the discrepancy between theory and practice on the subject of execution. In addition, the current system in the definition of public interest, compensation mechanism, relief system and other aspects of the provisions need to be improved. On the basis of analyzing the current system, the author puts forward some suggestions on the judicial forced relocation system from three aspects: the decision of expropriation, the compensation mechanism and the execution procedure. In the process of making the expropriation decision, the author suggests that the judicial definition system of the public interest should be added to change the linear system defined by the administrative organs; in addition, The author suggests that the proportion of the public interest pursued and the personal interests to be "damaged" should be fully considered before the expropriation decision is made, that is, the application of the principle of proportion in the expropriation should be made clear, and at the same time, the hearing system should be perfected. In order to better achieve the purpose of public interest expropriation, protect the rights and interests of the expropriated person. As to the mechanism of expropriation and compensation, the author thinks that the compensation scope should be expanded and the compensation standard should be improved in order to alleviate the difficulty of demolition to a certain extent. For the execution procedure, the author puts forward some perfect suggestions from two aspects of scientific determination of the subject of execution and the addition of suspension of execution, in order to determine the separate system of sanctions in the field of compulsory collection from the system level, and at the same time to better safeguard the rights and interests of the expropriated person.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D926.2;D922.3

【参考文献】