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Study on the Protection of Private Property of Administrative Law

Author: WangYangWen
Tutor: YangHaiKun
School: Suzhou University
Course: Constitutional and Administrative Law
Keywords: Private property rights Administrative law Citizens’ basic rights Functional perspective System and practice
CLC: D922.1
Type: PhD thesis
Year: 2008
Downloads: 429
Quote: 4
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Abstract


For thousands of years, the property rights issue has been an eternal topic during the development of the human society. In the classical constitutional theory, according to the natural legal science’s viewpoint, the property rights belongs to inherent right, with life and liberty together construct the cornerstone of the human rights system. Although the life is the highest, but what maintain and extend the life is actually the property rights.“the poor wihtout free”. The liberty is also take certain property rights as the foundation. Human’s liberty and survival cannot maintain without certain property. To individual,the property dooms the present happy in the world. As a foundational right, the property rights constituted the foundation of life.In order to realize person’s core value which manifests through the property rights, the private property rights always reside in the core status in the Western constitutional rights system.the property rights safeguard, in fact constituted the central content of the modern constitution. The protection of the private property rights is not only a basic point on which the modern country depends, but also the important basis on which modern free country to a modern society national. Due to the history, the protection of the private property rights in China law is extremely limited and frail.There are no clear defenitons of private property rights in our country’s legal tradition, and lacks the idea of sacred inviolable property rights. During the past 30 years which starts from the 11st Third Session, along with economic reform’s deepening, the issue of economy and the property rights has been the central subject in the Constitution amendments. and during the following implementation of Constitution, the value of private property rights is highlighting through various forms. Thus changes the idea of people’s view to wealth.But because of the constitutional experience and historical lesson, some members of different social classes hold suspicious attitude to the private property rights. In the critical sound, the constitutional amendments(2004) established the protection principle of private property rights, and the Property law execute in 2007.The Amendments of the Constitution and the legislative course witnesses the huge transformation of the protection idea of the private property rights in China society.They are also reflecting the unremitting effort and firm determination of Chinese goverment in implementating the Constitution.There are no question in protecting the private property rights, the difficult lies on how to put the protection into practice. Because,the amendment of the Consititution and the implementation of the Property law is an important step ,but it is far than the last step.Only the Proerty law can not assume full responsibility of future social life, the development of property right and the coordination of property right and executive power coordinated must be open to the administrative law.It will be the common duty to protect the private property rights for the modern public law and the civil law.And it is necessary to compose an complete plan to protect the property rights in China .This article focus on the analysis of the private property rights protection from the view of administrative law. It is a try refering the idea of George Jellinek about fundamental right systems theory and introduces into the experimental proof. First, it broadly discusses the protection of the private property rights in theory and practice, and emphatically analyzes different evolution of the vein and the protection reality in the West and China. Secondly,the thesis inspects the connotation difference between the public law and civil law, attempting to promulgate the protection dynamics and scope of administrative law; Finally, it introduces“the status theory”of George Jellinek into administrative law theory, expecting to pattern a panoram protection prospect from administrative law scope.Thus in the following chapters it respectively elaborates defense right/resistance right function with emphasis of the private property rights; Profits right/request right function; and institutional safeguard function.This article takes the view of the function of private proterty right as citizens’ basic right, and belives that the referrece to the administrative law protection from the private property rights’ as citizens’ basic right just also means a kind of transformation of research angle from the private party’s view, thus put in the authority under the right, the protection of right shows vigorous vitality and current relevance. The article lays emphasis on the property right protection through administrative law.According to the administrative law, we cannot constrained by the constitution research tradition; With the trend of service administration and welfare administration, it is also important to safeguard the private party’s profit right, because there are something that the state cannot do, there also something that the state must do.The state must undertake some positive obligations. The private property rights must transfer from“the right of safeguard state”or“the right against state”to“the right through state”or“the right of request from state”. Therefore, we must strengthen and consummate the protection system of private property rights particularly in the field of administrative law, provides firm legal support and strong backing for private property rights.

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CLC: > Political, legal > Legal > Chinese law > Administrative law
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