On the Constitutional Protection of Private Property Rights System

Paper Keywords: Private Property Rights Protection of the Constitution constitution Constitution of the foreign
Abstract: In explaining the Constitution abroad, private property rights protection system on the base humble, and that our system of constitutional and other reasons due to public property or over a strong advantageous position, the status of the fundamental rights of private property and human rights attributes have not been demonstrated, there is the lack of protection of private property rights. through a comparative study, by improving the protection of our constitutional system of private property rights of thought: our Constitution should establish the constitutional status of private property rights and the fundamental rights of its citizens into the system, clearly establish the collection, expropriation principles of due process.

Since reform and opening, China has changed in the past a single structural form of public ownership of production, non-public economy has been developing rapidly, showing a variety of property relations and complex. How the height of the Constitution to strengthen supervision and management, promoting non-public economy healthy development, improve the legal system of protection of private property, no doubt a very important practical significance, but also inevitably lead us to perfect the constitutional protection of private property rights regime in China.

China on Private Property Rights Protection System stArts with "<common program>> However, the constitutional protection of private property rights, the real establishment of the constitution in 1954. Fourth Article 8 of the Constitution from 14 to more concentrated in the protection of private property and makes provision for restrictions. sessions of the working pArty and the country will be the focus shifted to economic construction as the center of the line up, the work gradually on the right track, the economy is gradually restored. In this context , Fifth National People's Congress enacted eighty-two Constitution. of 1982 <<Constitution>> Section 13 provides that: "The State protects the Lawful citizens of income, savings, houses and other Lawful property." adopted in 1988 << constitutional>> amendment to Article 1 states: "The State permits the private economy in the scope of the Law to exist and develop. The private economy is a socialist public economy." adopted in 1993 <<constitutional>> amendment to Article 7 provides: "The state practices socialist market economy." 1999 <<constitutional>> amendment to Article 16 clearly stipulates: "In the legal context of the individual economy, private and other non-public ownership economy is an important component of socialist market economy section. "2004 <<constitutional>> amendment to Article 21 stipulates:" The state protects the individual economy, private and other legitimate rights and interests of non-public ownership economy. The state encourages, supports and guides the development of non-public economy, and the non-public economy supervision and management according to Law "; 2004 <<constitutional>> amendment to Article 22 stipulates:" Citizens of Lawful private property is inviolable. State, in accordance with law, protects citizens to private property and inheritance rights. "It can be seen, the current constitution the protection of private property is no longer limited to citizens or legal emphasis on income, savings, houses and other property maintenance of subsistence, but the data will be placed on production and living the same location. Another visible change is, maintenance of the existing constitution of property, not just stop at the title as in the past, by declaring lawful private property is inviolable, in fact, to achieve a richer meaning, "property rights" instead of "ownership", thus expanding the protection of the Constitution property range. from the text of the 1982 Constitution and its amendments followed the socialist past, the protection of public property, but also constantly strengthen the protection of private property, private property of citizens satisfied the Constitution's protection of people of Sichuan.

Private property rights has important value in the human rights system is the foundation of the provisions of the Constitution to private property is the fundamental basis for other specific property. This paper argues that the protection of private property must first be achieved through constitutional, China conducted a 4 Although constitutional amendments, and continue to strengthen the protection of private property rights, but the Constitution and the Western countries, the protection of private property than there are still many deficiencies.


First, foreign constitutional protection of private property rights
In the early capitalist countries, as a basic human right of private property is protected by .1789 in France <"Human Rights Declaration>> Article 2 declares:" The purpose of any political association is the preservation of both natural and right can not be shaken . These rights are liberty, property, security and resistance to oppression. "Article 17 provides:" Property is inviolable and sacred right. "Jacobin Constitution of 1793 in the revised <" Human Rights Declaration>> of further claims "property for all citizens be free to dispose of their wealth, their income, their work and career are the rights of income," stressed the restriction of private property came into force in .1791 <"American Constitution>> The Fifth Amendment provides: "The people have to protect their health, houses, papers and property rights, free from unreasonable search and seizure. This is the inviolable rights." According to the Netherlands and ��������� Hengli Fan Mar Severn Research, as of March 31, 1976, the world's 156 countries in the Constitution of the information, there are 118 Constitution provides for private property rights, accounting for 83.1%, no provision of the Constitution of 1975 only, including China, including 24, accounting for 16.9%. in the last 26 years, more than 50 countries have enacted or amended their constitutions'.

Known as the human history of a constitutional document of the <"Free Magna Carta>>, the core content is the protection of freedom and property, limiting royal power, protection of private property from arbitrary usurpation of the king. King of private property in the UK violation and subjects the struggle against violations, and ultimately determine the modern private property is inviolable principle, which is also the world of modern British constitutional protection of private property rights related to the beginning.

United States 1776 <"The Independents Declaration>> while not clearly defined private property is inviolable, but that the protection of private property rights embodied in the pursuit of happiness and freedom of being .1787 <" Federal Constitution>> also did not mention private property rights. To compensate for defects in the Constitution, the U.S. Congress passed the Fifth Amendment: "without due process of law, shall not deprive any person of life, liberty and property. all private property, not a just compensation, shall not be closed for the public." Tenth Fourth Amendment: "No State shall, without due process of the line to deprive any person of life, liberty and property."
French current constitution was promulgated in 1958. For property rights, the <"Human Rights Declaration of>> the existing condition, the body of the French Constitution does not repeat. <" Human Rights Declaration>> Article 17 provides: "Property is inviolable rights, unless the legally determined public need obviously is necessary, and compensation in a fair condition in advance, no person shall be deprived of property. "by the British, American and French influence, Western countries have constitutional provisions of non-private property rights invasive.

Federal Republic of Germany the Basic Law in 1949 enacted, in fact, the German constitution. On the property, the German Basic Law, an independent property rights provisions of the Act Article 14 of the "property, inheritance rights and collection" to the provisions of section clever article on the "social "of the provisions of .1949 were on <<Basic Law of the Federal Republic of Germany>> Article 14 provides that: (1) property rights and inheritance rights are protected by law, its content and scope of the law. (2) property rights, obligations, that is, its use should be conducive to the public. (3) the public interest, property may be levied. collection should be according to law, and shall determine the amount of collection methods and compensation. payment should be appropriate to take into account the interests of the public and interested parties. "
Japan's current Constitution was promulgated in 1946. On the property, the property rights of the Japanese Constitution, the terms are independent. The Japanese Constitution, Article 29 provides: "Property shall not be infringed. The content of property rights, shall comply with the public welfare agency, to be stipulated by law. Private property in the proper The following have received compensation for public. "
<<Russian Federation Constitution,>> in establishing the coexistence of various forms of production based on the principles of ownership, 35 the protection of private property has made specific provisions. Article 35, paragraph 1, emphasized that "private property by law protection "and change the past only emphasized the" socialist public property is inviolable "and the ownership of the socialist mode of production, and in Paragraph 2 of the power of private property rights has made provision that" Everyone has the right to with all of its property, the right, individually or jointly with others to possess, use and dispose of their property, "" inheritance protection. "In order to achieve the protection of private property rights, paragraph 3 states:" No person shall be deprived of his property unless the decision of the court "." countries need to confiscation of property by force can only be made in the pre-compensation cases equivalent to "limit the use of its special status in the country may be a violation of private property rights;
Constitution of view of modern, capitalist state constitution on private property rights protection system, including the following three aspects: First, private property shall not be violated; the second is the constraints imposed by private property rights are conducive to the public welfare; third is in the public interests, in the case of fair or just compensation, you can Expropriation of private property. In short, the inviolability of the terms, restrictions and expropriation, requisition compensation provisions constitute the modern capitalist state constitutional protection of private property rights .

Second, our Constitution defects of private property protection
1. Dominance of public property is still too strong, equal protection is not sufficient
Inviolability of private property of citizens, means that the state obligation to protect the property rights of citizens, and to take effective measures to achieve property value. In public property and private property protection, the principle had long been used in inequality, in the the protection of public property to take pro-active policy, and the protection of private property it appears that negative and passive, not only that, in specific efforts to protect public property is also significant to the tilt, resulting in two unequal property rights protection. the principle of protection inequality, the objective to generate a series of social problems, such as private property owners lack of security and so on. from a constitutional perspective, in recent years, China's social development between the public and private interest in one of the important reasons of conflict, from a certain extent, can be said that private property of citizens about the lack of effective protection.

2. There is no fundamental right to highlight the status of private property and property rights
While the current amendments to the Constitution to private property of citizens to do a relatively good provision, but did not change in the Constitution which provides that location. The amended Constitution will still protect private property as part of the socialist economic system, norms on private property was placed in the master's basic economic system, in the basic rights and obligations that were not involved. The constitutional text in accordance with the provisions of the world the practice of citizens to private property are basic civil rights provisions of the chapter, stressed that it is the citizens a fundamental right of inviolability. But in our Constitution on fundamental rights and duties of citizens without a corresponding provision in this fragmented system, the integrity of the human rights of citizens. private property rights system in the foundation value, there is no private property rights, fundamental rights of citizens is not complete. reposted elsewhere in the Research Papers Download http://www.hi138.com 3. on the Expropriation of the compensation provisions is vague, and lack of due process requirements
Lack of clarity in our Constitution just compensation for expropriation provisions. Although the Constitution provides that can be compensated according to law, but to compensate for the lack of general principles and standards requirements. Not sure what is the use of just compensation, full compensation is the appropriate standard of compensation, may cause Ministry of Law and practice the specific compensation standards confusion. not only vague terms of compensation, compensation for expropriation of our Constitution is also a lack of due process requirements.

Constitutional text from around the world to see, first of all to make compensation provisions of the U.S. Constitution, U.S. Constitution without due process of law shall not deprive any person of life or property. Although not all countries have as a substantive due process or procedural legal principle, but 50 years since the 20th century, many countries the protection of private property rights in the Constitution on the principle of due process of mostly trying to introduce to limit government abuse of power. Unfortunately, this is still a lack of basic provisions of the Constitution.

4. "Public interest" is difficult to define the scope of
The amended China's Constitution stipulates: "The State, in the public interest and in accordance with the law on land expropriation or requisition and compensation" (Article 10, paragraph 3); "in accordance with the law on private property of citizens expropriation or requisition compensation "(Article 13). expropriation or requisition must be" public interest "as a precondition, therefore, essential to the definition of public interest.

But who will define the "public interest" mean? American experience can give us some inspiration. First, the "public interest" is a very flexible and difficult to define the concept, which is not possible to derive a clear universally accepted standards. Second, representatives of the people and not by the government to define "public interest" because the board is equivalent to a "public service machine", which represents the "public interest" the most reliable guarantor. Third, the court should impose on the Government impose a certain degree of judicial control, but its focus is guaranteed to be imposed by access to "just compensation." Fourth, China faces the task of constitutional government in the framework of the established system, a reasonable definition of the functions of different government departments and obligations, so that collection of "public interest" and just compensation have been effectively protected.

Third, improve the system of Constitutional Protection of Private Property in the basic thinking
China's current Constitution, expropriation of property of private property rights protection system exists imperfect, both a product of the planned economic system, constitutional theory and practice is a reflection of underdevelopment, and the need for further constitutional changes to make to achieve constitutional democracy.

1. Clearly the main body of the scope of protection of private property
The main scope of private property shall include all citizens, and should, regardless of political attitudes, religious beliefs, education, length of residence, urban and rural accounts, gender, ethnicity, are equal. This is the driving principle in national constitutions, though not necessarily written in provisions inside.

2. A clear constitutional status of private property, be included in the basic rights system
"As China's economic system is based on public ownership as the main body, which is bound to the constitution of private property rights system, the provisions on citizenship only in the subordinate position of public property. This property as a fundamental human value system of human rights have the status of the disproportionate. "delineated in the Constitution expressly limits the rights of citizens and the state to limit and prevent unlimited expansion of the rights of States to protect the basic human rights of citizens, is one of the basic functions of the Constitution. based on personal liberty, and property rights is the right to life the basic and important part of the private property areas of basic civil rights Should Be, so China's human rights system will also be more perfect. constitutional norms can we be more conducive to protecting the fundamental rights of citizens. Therefore, a clear constitutional status of private property rights will be citizen's right to exist, the basic material security the right to development, so that the whole human rights with a solid foundation.

3. Clearly established Expropriation principles of due process
In China, in addition to land acquisition, most of the expropriation, requisition no process control, or procedural requirements are very simple, is not conducive to the protection of private property rights of citizens. Text in the United States Constitution provides due process of law (the amendment of Article 5, 14), it is not from the start of the administrative organs of the binding, but the reality needs to be derived from the function. due process principles to express the idea that human subjectivity is a recognition and respect, are also Because of this, people are concerned about the legitimacy of the process will be enduring. constitutional principles of due process should be established, without due process of law may not deprive citizens of their private property. Not only that, our country can also Expropriation implementation of civil participate in the hearing system and the system of civil rights protection system, the implementation of citizen's right to information, participation and supervision. At the same time, citizens can also exercise the right of defense and the right to due process procedures, constraints and counter the government's expropriation, eminent domain, to effectively protect their illegal private property rights from government encroachment.

4. To re-define "public interest"
Although the Constitution provides for the public interest "law," expropriation, but to determine public interest (and reasonable limits) the power is mainly concentrated in the hands of political leaders and administrative officials, the public good elements of the Constitution is actually rather ambiguous. As can attention from the "public interest" as defined in the theory of transfer to the system construction, so that national and local People's Congress or its Standing Committee to the program of land acquisition and compensation play a substantive role in the decision, then, the collection currently plaguing China's social problems will be much improved, and the consequent social contradictions and conflicts of interest will also be a considerable relief. Links http://www.hi138.com Research Papers Download