我国公益性收回与公益征收内涵之反思
发布时间：2018-07-23 17:28
【摘要】：我国实行土地的社会主义公有制,意味着我国只存在两种土地所有权——国家土地所有权和集体土地所有权。我国的海域属于国家所有。由于国家和集体都是较为抽象的概念,这使得土地和海域的所有者往往不具有直接使用土地和海域的能力,因此必须将其上的一部分权能分离出来让渡给具体的权利主体,以实现对土地和海域的充分利用。土地使用权和海域使用权于是产生。 现今社会中,随着城市建设步伐的加快,社会公共事业的不断发展与推进,以公共利益为由收回未到期的土地使用权和海域使用权的现象不断出现,并呈增多趋势。但是我国现行的法律并未系统地对收回这一行为进行规范,而是将各种性质差异很大的收回一并规定,使得对概念的理解出现偏差,亦给实践问题的处理带来不便。公益性提前收回在实践中常与征收联系在一起,但在征收与收回关系的问题上却存在分歧,理解不一,处理实践问题思路混乱,在一定程度上导致了纠纷频繁,如已然成为社会焦点问题的房拆纠纷。 本文所要讨论的核心问题是收回与征收的关系。就学界不能达成一致意见的“收回是否应属于可属于征收之一种”的问题进行分析。 本文通过五个部分展开论述这一问题。首先,介绍国有土地使用权、海域使用权的产生背景及其价值,并就收回制度产生的必然性和现行的法律规定进行说明,明确讨论的中心为因公共利益提前收回的情形；其次,陈述学界关于征收和收回关系的争议,指出争议的焦点所在,点明全文所讨论的核心问题；再次,对当前制度安排下的现状进行呈现；而后对现状进行分析,总结存在的主要问题,并对其原因进行分析论述,明确表明当前制度之不足,指出收回应当为征收所吸收；最后,对收回为征收所吸收的可行性进行分析,从权力的来源和正当性、收回客体本身、征收与收回的特征和客体的对照等角度细致论述,以说明收回不仅应当为征收所吸收,并且这具有可行性,是得以实现的。期望通过本文的研究,对征收和收回的内涵有更清晰的认识,对理论研究和实践问题的解决有所助益。
[Abstract]:The socialist public ownership of land means that there are only two kinds of land ownership in our country: state land ownership and collective land ownership. The sea area of our country belongs to the state. Since both the State and the collective are more abstract concepts, which often render the owners of land and sea areas incapable of direct use of the land and sea areas, it is necessary to separate some of their powers from them to specific subjects of rights, In order to achieve the full use of land and sea areas. The right to use land and the right to use the sea came into being. In today's society, with the acceleration of urban construction and the continuous development and promotion of social public utilities, the phenomenon of recovering the right to use land and sea areas which is not due to the expiration of the public interest is constantly appearing, and showing an increasing trend. However, the current law of our country does not systematically regulate the recovery of this behavior, but the different nature of the withdrawal together with the provisions, which makes the understanding of the concept deviation, but also brings inconvenience to the handling of practical problems. Public welfare early recovery is often associated with expropriation in practice, but there are differences in the relationship between expropriation and recovery, different understanding, confusion in handling practical problems, which leads to frequent disputes to some extent. Such as has become a social focus of the demolition dispute. The core issue discussed in this paper is the relationship between recovery and levy. This paper analyzes whether recovery should be one of expropriation, which can not be agreed by academic circles. This paper discusses this problem through five parts. Firstly, it introduces the background and value of the right to use state-owned land, the right to use the sea area, and explains the inevitability of the recovery system and the current legal provisions. It is clear that the focus of the discussion is the situation of early recovery due to the public interest. It points out the focal point of the dispute, points out the core issues discussed in the paper; thirdly, presents the current situation under the current system arrangement; and then analyzes the current situation. Summing up the main problems, analyzing the reasons, pointing out the deficiency of the current system, pointing out that the recovery should be absorbed by the expropriation; finally, the feasibility of the recovery for the expropriation is analyzed. From the angle of the source and legitimacy of the power, the object itself, the characteristics of expropriation and recovery and the contrast of the object, this paper discusses in detail that the recovery should not only be absorbed by the expropriation, but also feasible and realized. It is expected that through the study of this paper, the connotation of expropriation and recovery will be more clearly understood, and it will be helpful to the theoretical research and practical problem solving.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.3
本文编号：2140117
[Abstract]:The socialist public ownership of land means that there are only two kinds of land ownership in our country: state land ownership and collective land ownership. The sea area of our country belongs to the state. Since both the State and the collective are more abstract concepts, which often render the owners of land and sea areas incapable of direct use of the land and sea areas, it is necessary to separate some of their powers from them to specific subjects of rights, In order to achieve the full use of land and sea areas. The right to use land and the right to use the sea came into being. In today's society, with the acceleration of urban construction and the continuous development and promotion of social public utilities, the phenomenon of recovering the right to use land and sea areas which is not due to the expiration of the public interest is constantly appearing, and showing an increasing trend. However, the current law of our country does not systematically regulate the recovery of this behavior, but the different nature of the withdrawal together with the provisions, which makes the understanding of the concept deviation, but also brings inconvenience to the handling of practical problems. Public welfare early recovery is often associated with expropriation in practice, but there are differences in the relationship between expropriation and recovery, different understanding, confusion in handling practical problems, which leads to frequent disputes to some extent. Such as has become a social focus of the demolition dispute. The core issue discussed in this paper is the relationship between recovery and levy. This paper analyzes whether recovery should be one of expropriation, which can not be agreed by academic circles. This paper discusses this problem through five parts. Firstly, it introduces the background and value of the right to use state-owned land, the right to use the sea area, and explains the inevitability of the recovery system and the current legal provisions. It is clear that the focus of the discussion is the situation of early recovery due to the public interest. It points out the focal point of the dispute, points out the core issues discussed in the paper; thirdly, presents the current situation under the current system arrangement; and then analyzes the current situation. Summing up the main problems, analyzing the reasons, pointing out the deficiency of the current system, pointing out that the recovery should be absorbed by the expropriation; finally, the feasibility of the recovery for the expropriation is analyzed. From the angle of the source and legitimacy of the power, the object itself, the characteristics of expropriation and recovery and the contrast of the object, this paper discusses in detail that the recovery should not only be absorbed by the expropriation, but also feasible and realized. It is expected that through the study of this paper, the connotation of expropriation and recovery will be more clearly understood, and it will be helpful to the theoretical research and practical problem solving.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.3
【参考文献】
相关期刊论文 前8条
1 朱广新;;房屋征收补偿范围与标准的思考[J];法学;2011年05期
2 李俊杰;张国敏;;论国有土地使用权的性质[J];河北法学;2006年03期
3 张先贵;;论国有土地使用权征收补偿规范体系设计——以“土地中心主义”取代“房屋中心主义”为立法理念[J];私法研究;2012年01期
4 李yN恒;金俭;;国有土地使用权“收回”之质疑[J];学术界;2011年08期
5 刘俊;;土地所有权权利结构重构[J];现代法学;2006年03期
6 朱广新;;物权法不宜规定征收、征用制度[J];云南大学学报(法学版);2006年03期
7 金伟峰;;论房屋征收中国有土地使用权的补偿[J];浙江大学学报(人文社会科学版);2013年02期
8 金俭;;国有土地使用权收回制度重构[J];西南民族大学学报(人文社会科学版);2013年01期
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