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4. Unknown_Error

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6. It took 13 years for the property law to be drafted and passed. After a record eight times of deliberation, it finally came late. However, no matter how many twists and turns it came into being or how many changes it made, people's evaluation of a law is not based on its efforts, because not all efforts are "no credit, no pain"; Moreover, "the life of law lies not in logic, but in experience.". Therefore, since the property law has been issued, it is necessary and reasonable. Whether it's criticism or praise, we should be able to see the profound reasons behind it. Instead of wasting time and energy on the same issue, doing some inaction and fighting a "war of words.". In many cases, we can always hear some people lament about the protection of public and private property by the property law, some accuse it of retrogression, some praise and even flaunt its greatness. As a law student, I just want to say something objective

the reason why property law is like this rather than other is determined by multiple factors< First of all, it is decided by its guiding ideology
any law is ultimately a trade-off made by a group of people (of course, this group of people are all participants in the formulation of laws) under the guidance of certain ideas, weighing over and over again on certain principles and theories, and on systems or norms. In China, whether it is to build socialist material civilization or socialist spiritual civilization or legal civilization, it must adhere to Marxism, because it is the guiding ideology of the party and the state. The Communist Party of China represents not only the interests of the Chinese working class, but also the interests of the Chinese people and the whole Chinese nation; Three Representatives & quot; As its guide to action, the party leads the people to formulate the Constitution and various laws through the organs of state power. Therefore, the value orientation of socialism and collectivism will certainly leave some traces in the current law of our country. This determines that the existing and future laws in China will not be "private"! This also determines the special protection of public property by property law, rather than the so-called absolute "equal protection" in theory< Secondly, it is determined by the class attribute of the law itself
law is the concentrated embodiment of the will of the ruling class. In order to safeguard the interests and needs of the ruling class, the ruling class uses the state power in its hands to turn the interests and needs of the class into law, and uses the state machine violence to guarantee its implementation, so as to obtain the effect of universal compliance, so as to maintain the social relations and social order beneficial to the class. As a result, the law has been branded with the brand of class, and no law can be implemented beyond the control of class. The Communist Party of China is the ruling party of China and the core of leadership of the Chinese people in building socialism. The Party embodies the fundamental interests of the overwhelming majority of the people by formulating correct lines, principles, policy guidance and regulating national life. This determines that at this stage, our country's law must be "public" instead of "private"

thirdly, it is determined by the specific national conditions of our country
China is a socialist country under the people's democratic dictatorship led by the working class and based on the alliance of workers and peasants. Public ownership is the essential feature of China's socialist system and the economic basis of the socialist system. At present, China is still in the primary stage of socialism, the level of proctivity development is not high and the growth is unbalanced, the population is large, the pressure is great, the per capita resources are limited, the comprehensive national strength needs to be strengthened, and the people's material and cultural living standards must be further improved. All these determine the fundamental mission of our legal system: to liberate and develop the proctive forces, eliminate exploitation, eliminate polarization, and finally achieve common prosperity. This is also the essential attribute of China's law. The resulting law is bound to have a strong "public" color. It is necessary to "collectively" achieve prosperity on a large scale
another reason is that, in addition to its foresight, the law affirms the established facts, and the property law of our country can not escape from such a logical circle

finally, the introction of the property law is a political issue, not an academic issue. We can't always compare the ideal state in the academic theory with the reality. In that case, we are only looking for ourselves to be disappointed and sad. Of course, e to the lag of the law itself, the inappropriateness of the law will be exposed, and our party and state will take measures to fill the "vacuum zone" and make up for the loopholes. Of course, it depends on the efforts of all our legal practitioners. However, I firmly believe that there will be a property law that is more suitable for China's national conditions in the near future
November 15, 2007

7. 1、 What law does the property law belong to
the property law belongs to the civil law. The civil law is the law that regulates the personal and property relations between equal subjects. It's private law< In addition to property law, civil law also includes contract law, marriage law and company law

property law is the law to adjust the relationship between tangible property, and the laws to adjust the relationship between intangible property mainly include contract law, trademark law, patent law, right law and so on Property law is an important part of civil law. Civil law is a law to adjust the property and personal relations between equal subjects, including property law, creditor's rights law (mainly contract law), marriage and family law, inheritance law, intellectual property law, personality law, etc. Property law is a law that specially regulates the possession, income, use and disposal of property by civil subjects (legal person and natural person). It includes ownership, usufructuary right, security interest, servitude, building distinction right and so on. To be clear, property law is mainly a law to protect people's property from illegal infringement, and it is a kind of law to protect people's property rights. There is an old English saying that "wind and rain can enter the poor's house, but the king can't", which embodies the protection function of property law< How to solve the disputes of real estate property right

1. In the acceptance of cases, it is stipulated that the litigation brought by the ownership of real estate property right and the disputes arising from the sale, donation and mortgage as the basis of real estate property right registration belongs to the scope of civil litigation of the people's court, which should be accepted by the people's court according to law and tried by the civil judicial department according to law

2. From the perspective of the probative power of the real estate register in litigation, it is stipulated that the final judgment of the ownership of the real estate in dispute should rely on the examination of the cause behavior or the basic relationship. Therefore, if the party concerned has evidence to prove that the record in the real estate register is inconsistent with the real right state, and he is the real right holder of the real estate right, They should support their claims< Third, the difference between the principal property right and the subordinate property right
1. The symmetry of the principal property right: "subordinate property right" does not exist independently on the premise of the existence of other rights, and does not affect its effectiveness e to the existence or elimination of other rights, such as ownership, superficies, etc< 2. Subordinate real right refers to the real right that must be attached to other rights. For example, mortgage, pledge and lien are set up to guarantee the creditor's rights. Easement is also derived from real right in relation to the ownership or use right of the easement

3. The difference between the two lies in whether they must be attached to certain rights. The main property right exists independently, and the subordinate property right must be attached, but the main property right can be transformed into the subordinate property right.

8. Article 16 in the regulations on the administration of urban housing demolition, if the demolisher and the demolished person or the demolisher, the demolished person and the House Lessee fail to reach an agreement on compensation and resettlement for demolition, the administrative department of housing demolition shall make a ruling upon the application of the parties concerned. If the administrative department of house demolition is the person to be demolished, it shall be decided by the people's government at the same level. The ruling shall be made within 30 days from the date of receiving the application
If a party is not satisfied with the ruling, he may bring a suit in the people's court within three months from the date of service of the ruling. If the dismantler has given monetary compensation to the dismantlee or provided houses for resettlement or turnover in accordance with the provisions of these regulations, the execution of the dismantlement shall not be stopped ring the litigation period
therefore, legally speaking, you can only talk to the developer about the amount of compensation, and there is no negotiation about whether to demolish the house or not. Moreover, since you can't decide whether to demolish, it's difficult for you to talk about compensation with the developer. As for entering the adjudication process, the demolition authorities will listen to your opinions on the compensation, but the decision is in their hands. This is like a thing to sell at a good price, you have to have two rights: sell it or not, sell it to whom. If the price given by the buyer is low, I can find the buyer who can get the starting price, or not to sell at all, etc. But neither of these two rights: the house must be demolished, and the developer is the only one. This is why demolition is terrible.

9. No matter whether the real right is established, changed, transferred or eliminated, except for those specified in Article 15, the contract becomes effective when it is established. The effect of the act of real right and the effect of the contract are two different things

10. At 3:00 p.m. on October 8, 2007, the civil trial division of Furong District People's court, Changsha City, Hunan Province. The hammer of the trial of Chang Jiang Tao has been sounded, and the first instance of a case concerning a dispute over the property right of a house has ended, and the court has ordered the defendant Liu Tao × Sha vacated the occupied house and handed it over to the plaintiff Li Fulian and others, and compensated the plaintiff, the owner of the house, 4855 yuan for the rent loss ring the occupation period

this seemingly simple case was written into the history of China's legal system because the newly implemented property law was first applied in China

on the day after the sentencing of the case, an editor of China court website confirmed that according to the information collected by the website, on the first working day after the implementation of the property law on October 8, although some people in China filed lawsuits or claimed rights in accordance with the provisions of the property law, some local courts commented on a case or took other judicial actions in accordance with the law, However, according to the property law, Furong district court's decision is the first in China<

problems left over by history

the rights related to housing in this case can be traced back to the late 1950s. A house owned by the plaintiff Li Fulian and others was improperly confiscated by the government. After 40 years, the house was rented to other residents as a public house. Until September 2005, the property was returned to the plaintiff after the implementation of the policy, and the property transfer proceres were handled

while the property was returned to the plaintiff by the government, some of the rooms in it were occupied by the defendant Liu × It's rented and occupied. Although the lease contract has expired, Liu refused to vacate the house from the plaintiff. The plaintiff had to resort to the law< According to the judgment of the first instance of Furong District Court of Changsha City, after the house was transferred by the government to the plaintiff and the property right change registration proceres were completed, the plaintiff obtained the ownership of the house, which should be respected and protected according to the property law. Although the defendant Liu × Sha is the original tenant of the house, but she is not the owner after all. She directly occupied the house without signing a lease agreement with the new owner of the house, which constituted malicious possession

therefore, the court ordered Liu × Sarton returned the house and compensated for the loss of rent

Zheng Li, the agent of the plaintiff, was very satisfied with the result of the judgment. In his view, the implementation of the property law makes the protection of citizens' rights and interests more in place<

the first right in the first time

according to the order No. 62 of the president of the people's Republic of China on March 16, 2007, the property law has come into force since October 1 this year. This is a basic law that Chinese people have been looking forward to for a long time. After 14 years of legislative preparation, seven deliberation and more than 100 amendments by the Standing Committee of the National People's Congress, it has finally become a basic system for equal protection of all kinds of property rights in China

e to the extensive discussion and publicity of the law in the legislative process, the principle of equal protection in the draft law and the spirit of focusing on the protection of housing and other real estate have aroused the general concern of the whole society, and people have long been looking forward to the formulation and implementation of the law

Chang Jiang Tao, the vice president of the first people's Court of Furong district, told legal weekly that as early as June 25 this year, the plaintiff filed a lawsuit to the court on the ground that the defendant illegally occupied his house, and the court accepted the case on the same day. Because the property law had not been formally implemented at that time, the plaintiff could only claim his own rights according to the general principles of civil law

on October 1, the property law was officially implemented, and October 8 was the first working day after the implementation of the law, which also became the first day for the judicial organs to apply the law

Jiang Tao told reporters that on the morning of October 8, the collegial panel held a collegial meeting on the case. As the presiding judge, he realized that it was time for the implementation of the property law, while the defendant Liu Tao was not × Sha is still occupying the plaintiff's house, which obviously violates the provisions of the property law, and should bear the responsibility of returning property and compensating for losses

therefore, Jiang Tao, together with members of the collegial panel, took the initiative to form a judgment opinion in accordance with the provisions of the property law, and delivered the judgment in time that afternoon

some people think that because the case protects the real estate, it is completely consistent with people's desire to expect the new law to give more powerful protection to the real estate. Considering that the real estate has the "first right" on the property, the commentators call the case "the judicial protection of the first right in the first time" after the implementation of China's property law< Vice President Jiang Tao said frankly that he was "very happy" to be able to handle property disputes in accordance with the provisions of the property law

"without the provisions of the property law, we can only use Article 71 of the general principles of the civil law when hearing such cases, which is very vague, too abstract and difficult to operate." Jiang Tao explained that the article only stipulates that "property ownership refers to the owner's right to possess, use, gain and dispose of his property according to law." The property law not only defines the above four rights and functions of the owner, but also stipulates what kind of legal protection can be obtained when these rights are infringed“ It is precisely because the new laws and regulations are clearer and more specific that our judicial work is more definite and more convenient. "

Jiang Tao said that the clear and specific provisions on property rights in the property law are equivalent to reflecting the spirit of fairness and justice promoted by the law in a way that citizens can see, and such provisions are of course more easily accepted by the people

over the past 20 years, this senior judge has been active in the legal disputes about house demolition in Changsha. He said with deep feeling that in the past, people's understanding of the property law remained more in ideas and words, and through the trial of cases with the property law, the new law really approached people's living space

Zhang Zhaohui, President of the civil division of Furong district court, also received an exclusive interview with the reporter of legal weekly on this case. He believed that the implementation of the property law not only brought new systems and ideas to the people's rights protection, but also made up for the deficiencies of China's civil legal norms for a long time, and provided a good rule system and guiding principles for judges. The scholar judge called on the majority of citizens to protect their legitimate rights and interests in strict accordance with the law, but also do not forget to perform their obligations in accordance with the provisions of the property law. He said that actively performing obligations and respecting the property rights of others are also good foundations for effective protection of one's own property rights

coincidentally, on the day of the judgment of this case, Beijing Changping District Court held a court session to hear a property dispute case involving the ownership of six houses. The plaintiff in this case directly quoted the provisions of the property law in the claim, and this case was called "the first case of Beijing property law" by local media<

experts and scholars say it is of great significance

Liu Zhigui, a well-known lawyer in Guangdong Province and partner of Guangdong Guoyi law firm, has noticed the trend of citizens actively using the property law to protect their rights and judicial organs consciously applying the law to decide cases. He believes that for a long time in the past, the state's legal provisions on property rights and interests were too general and abstract, The implementation of property law provides space and possibility for the release of the impulse. "It is estimated that in the next one to two years from now, there will be a large number of cases in which Chinese society will use the property law to claim rights and settle disputes," the lawyer predicted to the legal weekly

Dr. Shen Weixing, a well-known jurist, deputy secretary of the Party committee and associate professor of Tsinghua University Law School, who once participated in the legislative discussion of the property law, fully affirmed the significance of the case of Furong district court. He believed that in the first civil case judged by the property law in China, the judge had a good understanding of the spirit of the property law, It fully implements the principle of the protection of real right and the principle of the effectiveness of real right< Shen Weixing explained that in this case, the defendant's possession of the house has constituted "unauthorized possession", so he should return the house and compensate the owner for the fruits or other benefits arising from such possession“ Although the case is simple, it is of great significance from the perspective of property protection. " Shen Weixing said

as an advocate and one of the main drafters of the property law for many years, Professor Wang Liming also called on all walks of life to abide by and implement the provisions of the property law. In the eyes of this famous jurist, property law is just like the spirit of his inscription for readers of legal Weekly - "property law"