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A Study on the Right Relief to the Tenants Whose Houses Involved Demolition

Author: WeiYang
Tutor: ZhengChengLiang
School: Shanghai Jiaotong University
Course: Civil and Commercial Law
Keywords: usufructuary right public interest right relief principle force majeure judicial remedy
CLC: D922.181
Type: Master's thesis
Year: 2011
Downloads: 88
Quote: 0
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Abstract


During the process of the demolition, tenants involved delineated , whose lease both have independence independent of all housing ownership, also must rely on the range of demolition housing to be delineated as can realize their attachment rights , the right have double attributes about independence and affiliation. About the relief to the tenants involved delineated should also insist on the two attributes as described above. We should not only take fully care of the ownership of relocation household but also grasp the lessee in houses and the nature of the bear hire authority and quantification extent. This paper is to clear the protection situation of the involved tenants, discuss the roots absence in the right of involved tenants, detailed analysis and compare the tear open houses in the area of right protection in the situation in order to establish the principles which should insist about the right relief to involved tenants. So as to construct the rational tear open houses in the lessee of right remedy measures system, also to make a correspondence with the legal practice, especially to provide the reference relevant methods legislation.At present our country in the right protection of involved tenants is not sufficient , mainly reflected in the following several aspects: (a)lack of standards on compensation about open houses for rent. The state council passed《State-owned land on the housing levy and Compensation Ordinance》On January 19, 2011 to replace the《City Housing Demolition Management Ordinance》. The former applied the tenants right relief to the《Contract law of PRC》while not specifically explicited, this directly lead to the consequences of no law can be applicable or incorrespondence with the current law. (b)not clear the litigants about the demolition housing. According to the《City Housing Demolition Management Ordinance》, the Lessee is a proper litigant. While according to the《State-owned land on the housing levy and Compensation Ordinance》, the lessee can not be the litigant of the compensation for demolition, who can only be compensated as litigant of Lease contract. (c) the content on the compensation for the lessee is uncertain. The《State-owned land on the housing levy and Compensation Ordinance》described relocation allowance, temporary placement subsidy, late transitional resettlement subsidies and production, business compensation and so on which the lessee should have. While the《State-owned land on the housing levy and Compensation Ordinance》does not clear define the content of compensation , it can only apply the contract law about the lease contract stipulation. (d) the demolition of Housing Lessee compensation standard is difficult to determine.The reasons which cause the lessees’rights can not be protected lie in the following aspects:(a) the implications of the demolition of Housing Lessee understanding is unclear so as to the legislation is too conservative, which is the root cause the demolition of Housing Lessee right safeguard strength is not sufficient;(b) implications of the demolition of Housing Lessee litigation status are embarrassment, it is their right did not get attention adequately reflected in the procedure;(c) moving body changes brought adverse effect, which means the adverse effect is defined by the original third party taken into state imposition of corresponding compensation.Comprehensive analysis and comparison on the demolition of housing tenant right protection of foreign legislation situation, if our country implement the lessee’s right relief, we must adhere to the following principles: (a)the principle of meaning autonomous, that is to say implications of the demolition of Housing Lessee whether to accept compensation, the accept compensation scales in a certain range can be made by the lessee to decide;(b)the principle of distinguish fault, that is to say for fault of the parties under different fault to determine compensation, deliberately caused the loss may not be compensated;(c) mediation principle of priority,that is to say for a party by compensation, rent party and the party reached a settlement agreement, in order to minimize the difficult execution status caused by litigation;(d)lease principle, that is to say for the demolition of housing compensation, if the lessee lessor continue to lease who can continue using the house;(e)the principle of reasonable compensation, that is to say according to the different period of the lease, the flourishing degree of business housing, the number of participating in operation and other factors, determine a reasonable amount of compensation.Truly finish the right relief involved in the demolition of housing tenant , we must have done the following work:(a) clear the legal consequences demolition of housing lease contract terminated, it is currently in the judicial process;(b)in the long run , we must solve the problem from the point of legislation , first of all we need clear lessee entity rights through legislative, determine the lessee ’s lawsuit status from legislative angle, perfect connotation and extension of“public interests”, establish an adequate compensation system. (c) in the current judicial practice,we should pay attention to the following points:(1) seize the core problem of determining case, cognizance train of thought;(2) moderate party opposition mood, good dimension stability;(3) multilateral coordination, make full use of the relevant functional departments;(4) adopt the pretrial identification model, shorten the cycle of trying;(5) grasp the parties psychological price timely.

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CLC: > Political, legal > Legal > Chinese law > Administrative law > Management Act of utilities
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