Unfair demolition regulations must be torn down

• Source: Global Times
• [23:15 July 29 2010]
• Comments

Shen Kui

Editor's Note:

Buildings marked with the Chinese character chai, "demolish," are a frequent feature of the Chinese urban landscape. Developers often hire thugs to intimidate or attack stubborn householders, and there are also numerous controversies over the seizure of land and the level of compensation paid to householders. It has been six months since the Office of Legislative Affairs of the State Council (OLA) published the proposal to revise the current Regulations on the Dismantlement of Urban Houses, and the lack of progress has caused public worries. What restraints will be placed on developers? How can householders' rights be protected? Global Times (GT) reporter Wang Di talked to Shen Kui (Shen), professor and deputy director of the Law School of Peking University, on these issues.

GT: What do you expect from the new regulations?

Shen: The new regulations should seek to reform several aspects of the current enforcement of demolition in urban areas.

First, we need to legislate on the procedure of expropriation. The Constitution of the People's Republic of China (2004) stipulates that there should be a proper procedure around expropriation.

But according to the current regulations, last amended by the State Council in 2001, demolition can be carried out by private firms with government authorization. We need to change the system. The government should expropriate land itself first and hand it over to developers later.

The new regulations will distinguish between public interests and non-public interests.

The current regulations do not clarify this and in reality individuals' property is often taken over in the name of so-called public interests, even if the development is essentially commercial. This contradicts the principle of protecting private property according to the Constitution.

Private property should be sold on a voluntary basis or be expropriated in genuine cases of public interest with fair compensations paid. Therefore the clarification is necessary.

Demolition associated with nonpublic interests should be made only after a voluntary negotiation between owners and developers produces a result. The technical difficulties are still evident, including how to make a deal, and whether the government should intervene.

The new regulations also standardize compensation and will address the problem of properly valuing soon-to-be-demolished property.

Also, violence during the demolition process will not be tolerated under the new rules.

GT: Do you think the current regulations violate the Property Law?

Shen: Definitely.

Since the Property Law came into force in 2007, the central government has directed attention to the revision of the regulations on urban demolitions.

In 2009, the case of Tang Fuzhen, who set herself on fire to save her building as she faced a demolition crew and the local government, triggered heated debate and brought considerable pressure for revision.

Five law professors, including myself, submitted a proposal for a constitutional review. The newest development is the proposal to revise the regulations and request public opinion, made by the OLA on January 29.

However, there's still stiff resistance.