论房屋征收中国有土地使用权的补偿  

On Compensation for the State-owned Land Use Right in Housing Expropriation

作　　者：金伟峰[1] 

机构地区：[1]浙江大学光华法学院,浙江杭州310008

出　　处：《浙江大学学报（人文社会科学版）》2013年第2期100-107,共8页Journal of Zhejiang University:Humanities and Social Sciences

摘　　要：房屋征收中国有土地使用权的提前收回本质上是对财产权的征收。虽然相关法律没有明确规定房屋征收中对国有土地使用权是否给予补偿和如何进行补偿,但财产征收补偿制度本身既有充分的法理依据和宪法依据,也有具体的法律依据。房屋征收中提前收回国有土地使用权时,除了应退还剩余年限的土地使用权出让金,补偿范围还应包括土地使用者的投资开发利益和该土地的预期增值利益;补偿标准应根据取得国有土地使用权的不同方式,即出让方式与划拨方式分别确定:对于出让土地的使用权,应当综合考虑该土地的用途、地理位置、剩余使用年限和基准地价等因素;对于划拨土地的使用权,应当考虑土地使用权人支付的土地开发成本等因素。This paper is focused on the related provisions of the Regulation on Expropriation and Compensation of Houses on State-owned Land. According to Article 13（3） of the Regulation, the state-owned land use right shall be taken back at the same time when the house is legally expropriated. However, the Regulation has stipulated the taking back of state-owned land use right in housing expropriation without any clear stipulation on the compensation for the advance withdrawal. Although factors such as geographic location should be taken into account when the house is assessed, in fact there is no such value assessment specifically aimed at the state-owned land use rights. When it comes to the state-owned land other than the land for houses, it is even harder for owners to get the market price compensation. Apparently, it is neither in conformity with the principle of justice, nor conducive to protect the legitimate rights of the owners. It is, undoubtedly, an urgent problem whether compensation should be offered and how to carry it out when the house is legally expropriated and meanwhile the state-owned land use right is taken back. First, based on the problems raised, the paper analyses the effect of housing expropriation when the use right of state-owned land is taken back ahead of schedule. According to the law, state-owned land is not an object to be expropriated, but the necessary conditions of taking back the land use right like ＂the public needs＂ and ＂compensation＂ are substantially the same as expropriation ahead of schedule, and their legal effects are similar to expropriation. Therefore, taking back the state-owned land use right ahead of schedule in housing expropriation is in essence the expropriation of property right. The compensation system of property collection, which has been stipulated in the Constitution of the People＇s Republic of China and relevant laws, has not only its constitutional grounds, but also specific legal basis. This paper discusses the scope and standard of compens

关 键 词：房屋征收 国有土地使用权 补偿范围 补偿标准 土地出让 土地划拨 

分 类 号：D922.181[政治法律—宪法学与行政法学] F301[政治法律—法学]