On the collection of civil damages and compensation for loss of convergence - the principle of compensation to be levied at the core

Keywords: Civil damages / compensation charge / life right compensation / compensation for illegal buildings

Abstract: Civil "damages" and impose "compensation" is the similarities of the two concepts and system of compensation for expropriation should adopt "full compensation principle." Based on this principle, the charge caused by non-property losses and the loss of successive loss of a third pArty such as the scope of compensation should also be included. The traditional charge compensation is "materialism", and just compensation for property damage caused by collection, and collection development trend of modern jurisprudence of compensation that the Compensation should be "on individualism ", and should the right to life, compensation, compensation, conditional illegal buildings into the range of compensation for expropriation.



First, the "damages" and "compensation" in the Relationship Between

Semantics alone is concerned, the Chinese, "damages" and "compensation" there is no difference. According to <<Ci Hai>> explains that "loss" of "loss", "injury" meaning, [1] and therefore "damage" and "loss" two semantic similarities. Also according to <<speech source>> interpretation of "compensation" with "compensation up" meaning, [2] Thus, "compensation" and "compensation" essentially is also a synonym .

In English, with "compensation for damage" in the Chinese phrase alleged "damages" and "compensation." In English does not distinguish between "damage" and "loss", also did not distinguish between "compensation" and "compensation." If under the <<element according to Common Law Dictionary>> explanation: "damage", the noun sense, refers to "damage, injury, damage, loss," that is "due to negligence (negligence, intentional (design or accident (accident illegal against another person, property and other legitimate rights and interests of the formation of loss or injury "," compensation ", means" compensation, compensation, "that" refers to others for loss of comparable value, currency, or other equivalent, so that by the loss of a pArty back to its original condition. "[3] In Chinese Translations <<Oxford Law Dictionary>>, although the" damage "term is translated as" damage ", but its meaning been translated as:" A had been subjected to legal proceedings are considered a loss or injury. "[4] can be seen, in the meaning, the" damage "is defined as a" loss "or" injury "," loss "can be used to explain" damage ", there is no semantic difference between the two. English version of" Black's Law Dictionary>> on the "damage" and "compensation" interpretation of the two entries [5] translated into Chinese, as can be seen that the English of the "damage "including the" damage "(injury and the" loss "(loss of two semantics, and" compensation for damage "can either be translated as" damages ", but also can be translated as" compensation. "

Fully visible in the semantics, the "damages" and "compensation" does not mean two completely different words, the two can mutually define and explain. If under the <"China Encyclopedia>>" damages "term explanation: damages is" a pArty for violations or defaults which cause damage to the other pArty shall bear Civil liability for compensation for other losses. "[6 ] Obviously, the term is "compensation" to the definition of "damages", which shows that the compilers of "damages" and "compensation" does not exist two essentially different concepts.

But that view is through the Civil Law that "damages" is the concept of private Law and system, and "compensation" is the concept of public law and system, although both are a result of a specific person to fill the results of a behavior does not suffer the economic interests of the system, but the system is "completely two things." [7] Shen words, the pass that point of view but trying to use the semantic similarities of the two terms are different morphemes to refer to two different concepts and systems , which will open to two diametrically respectively. From the perspective of the concept of structure, pass that point and understandable. but never deviate from the concept of the term structure of the core of semantics, since the "damages" and "compensation" is the semantic similarities of the two a term, then alleged that the two systems concept and systems are "diametrically two things", I am afraid may not be appropriate.

We believe that the private system as one of the major "Civil damages" and one of the major public law system as a "compensation levy", although not without differences between the two (such as compensation for the former reason is illegal, and the latter because of compensation is a legitimate exercise of public power, but they are not completely separate the concept of the semantic similarities not only in the core, and the meaning of the core of the system is also interlinked. along with the private law and public law to half the gap and the increasing barriers to be broken, General view of the theoretical basis that has been shaken to its hold on there again be reviewed. In view of this, this legislation based on public and private law perspective intertwined through demonstration concluded: civil compensation system and charge compensation system, not the "Cowboy" and "Weaver" as the system will never separate and discrete, both in the modern law has become more confluent, especially the charge compensation system, which is gradually converging on the system of civil damages, The latter general concept, principles, rules on the legislative policy should be able to directly or slightly modified to apply to the former. In other words, the collection of compensation can be "permitted" the principle of civil damages, principles and rules. These conclusions have out of the current levy for the compensation system to resolve the compensation principles, criteria, scope, approach a range of areas such as irrational, with Concept and the system construction significance.

Second, "full compensation" principle and the "full compensation" principle of convergence

Although the various countries and regions the damage compensation system design is not the same, but to observe the highest guiding principle is unified, that is, "designed to damage the victim can no longer act as not occurred in the course of the situation." [8] as << German Civil Code>> Section 249 which stipulates that: "Damages must be restored if the obligor no incurring obligations will exist by the state." In common law, the same commitment to these principles. Long words, for Breach of Contract compensation, its principle of compensation to the non-defaulting pArty if the contract is fully recovered to perform when the situation in terms of damages for infringement, the principle of compensation to the injured party if the infringement had not been restored to the time of the situation. [9] Taiwan, China "Civil Code" with "restore the original" [10] the term to describe the situation, the Article 213 states: "liable for damages, in addition to as otherwise required by law or contract provide for In addition, the other party shall reply to the original state before the damage occurred. "Taiwan, China, according to the definition of legal precedent and the doctrine of the so-called status quo should be restored, not" original condition "and system" should the situation. "[11] shows , of the same commitment to these principles in Taiwan. In order to achieve the highest guiding principle of damages in the operation level, the non-implementation of "full compensation" ("full compensation" system can not, because only be full compensation for the damage can only be restored to that of the damage has not occurred the proper position. Therefore, the highest guiding principle of damages, rather regarded as the highest damages in private law "idea", and the realization of the concept of "full compensation" system, was the highest guiding principle of damages.

Civil damages in the "full compensation" principle, whether the collection of compensation has its applicable? In other words, the collection of compensation should the implementation of "full compensation" principle? We believe that the answer should be yes.

On the principle of compensation for expropriation, there have always been three cases and jurisprudence legislation, doctrine, that "full compensation" (or "full compensation", "appropriate compensation" (or "substantial compensation" and "equitable compensation". "Totally compensation ", said that people should charge for public relations born to the loss of charge to give full compensation," appropriate compensation ", said that the levying of public relations people were born to the loss of charge as long as the equivalent or appropriate to give compensation to, and "equitable compensation", said (also known as a compromise, said that compensation for expropriation in the appropriate relationship between public welfare and the interests, the decision was fair is enough, measurable results of their interests may be fully compensated, it may be quite compensation. [ 12]

Should be said that the German compensation system for the collection of development, is repeatedly experienced by the "full compensation" to the "appropriate compensation" to "equitable compensation" for the full development, and therefore the principle of compensation for expropriation of the German study, a typical representative of significance .19 century Germany, in the "free country ruled by law" under the influence of philosophy on the principle of compensation that the total charge. According to <<Prussian General State Law "> requirements, the collection of compensation, and not only objects in the collection of the" normal value "and that thing should be the" special value. "So-called" normal value "is referring to things of any person able to use the value as well as anyone can generate and valuation calculated the value of convenience and comfort, the so-called "special value" refers to addition to "normal value", the relationship based on some conditions and to generate value. the above provisions of the Act show, the collection of compensation and tort itself did not differ, depending on the country caused by the public authority against "any loss" should be given compensation and the compensation standard based on "market economy" and "trading value "compensation. [13] The Prussian general provisions of state law, in principle, another major German states - Bavaria adopted. Bavaria on November 17, 1837 announced <<Public Levy Law"> which provides that compensation levy, in addition to compensation for property of the "normal value", they also need to charge caused by "other non-interest" to be compensated. and such so-called "other non-interest", in essence, state law is the general sense of Prussia "special value" losses. thus the authority of the 19th century German doctrine, be imposed by the loss of property interests should be fully compensated, the principle of private law damages room supplement applies. [14] the implementation of "full compensation" principle the results, allowing people to be imposed as long as the "objective" to present evidence, the "all loss" can be compensated, even if the "expected benefit" of the losses are made. Therefore, as a German scholar said: "The fact of Public Law The 'compensation' and the civil law 'damages' is not easy to distinguish between carry on. "[15]

Period to the Weimar Constitution, "freedom rule of law" concept began to decline, "social rule of law" concept began to rise, and thus the provisions of Article 153 of the Weimar Constitution to shift to compensation for expropriation "appropriate compensation" principle. Weimar Constitution "adopted by the appropriate compensation "than the principle of" full compensation "principle, is a more flexible model, because the legislators can weigh the public's demand to Shenzhuo property status between the parties, to develop a variety of different levels of Expropriation Compensation , and not be confined to the past emphasis on human rights protection be charged the full compensation. But the framers of the Weimar Constitution adopted the concept of the elasticity of compensation, in the subsequent federal and state level have not been the legislation implementation to what is "appropriate compensation" does not impose any legislation be clearly defined, and thus one can see the attitude of the courts during the Weimar era in fact still the full compensation along the view through the past, for all the losses to property rights Zhaozhi still be lenient compensation, and implementation for public collection Suoyu factors, has not been used as a measure of compensation for expropriation considerations. [16]

After World War II, the 1949 German Basic Law in Article 14, paragraph 3, to establish a collection of "equitable compensation" principle, which is levied in a fair measure of compensation should be the public interest and the interests of relations after the decision. In accordance with the principles of public relationship between interests and the interests of the measure should be used as factors to be considered equal, and thus not included in the period of the Weimar Constitution, the public interest factors to consider beginning to be formally proposed. But this time, doctrine, jurisprudence and legislation in fact still uphold by Wei Ma era of "appropriate compensation" principle and the twists and turns to achieve "full compensation" for purposes of measuring public interest factors is not actually a real manner. such as the German Federal legislation based on the ordinary courts "equal protection of the right" starting point, it is just compensation should be "so people will have the ability to be imposed prior to the expropriation of the property back to the state", which made the collection of compensation "re-made theory" (Wiederbeschaffungstheorie. after the presentation of the theory, he incurs a subsequent decision the court regarded as a model, and to pursue enduring. according to "re-made theory" to land acquisition, means can be imposed should impose compensation to buy from the market price obtained by the expropriation of their land of equal value (quality of the land. Since then, As federal legislation <"German Construction Code>> adopted the same view with the same legislative pattern case. Therefore, whether in legislation or in practice, the concept of compensation for expropriation of Germany after the war, in fact, has returned to in The prevalence of pre-war full, adequate compensation philosophy, its Basic Law Article 14 established "equitable compensation" principle, in fact, is "full compensation" principle to replace the name only. [17]

By <<Japanese Constitution, "Article 29, paragraph 3 provides that the charge compensation requires" just compensation ", and by-pass that point of view, the so-called" just compensation "that is" full compensation. "This is so because the loss from the imposition of equitable burden point of view, should be collected before and after acts of property owned by that person of value did not change as a proper compensation, and therefore entirely proper compensation and the compensation is the same. In Japan, full compensation is a basic principle of compensation, and only in very rare exceptions, can only be given "considerable compensation." Such as on agricultural land after World War II compensation reform, the Japanese Supreme Court has adopted a so-called "fairly compensated," said that the just compensation required by the Constitution, "is based on its current economic state is that the establishment of the price, quite reasonably calculated the amount, therefore, does not necessarily require the price is always consistent with the amount. " But the exception is, after all exceptions, these exceptions can not shake the "full compensation" principle position. [18]

United States Constitution Fifth Amendment requirements imposed private property should be given "just compensation" (just compensation). "Just compensation" is also known as "just compensation" (due compensation, "full compensation" (adequate compensation. Generally speaking, only be imposed to give the fair market value of the expropriation of property (fair market value, so that was levied in property after the situation will not be charged prior to the expropriation worse than (worse off, amount to "just compensation." [19] by the This can be seen, the U.S. law on the charge compensation is also used in "full compensation" principle of full compensation because only constitutes just compensation, only to charge caused due to give full compensation for all damage to the human condition to be imposed do not, through collection and worse. belong to the same common law of Australia, in its 1989 <"Land Collection Law"> in, in Article 55 is clear that the "full compensation" principle: "In accordance with the relevant section interest in land requirements imposed on the person entitled to compensation, the compensation should be taking into account all relevant factors and make the appropriate charge to compensate the person in the amount of all losses suffered. "

In the late 20th century after the disintegration of the former Soviet Union in the CIS countries, "full compensation" principle the same as many countries recognized by the Constitution. If <<Constitution of the Russian Federation>> Article 35 shall be levied on the property "is equivalent compensation "," <Constitution of the Republic of Tajikistan>> Article 32 should be given "full compensation", "<Constitution of the Republic of Kazakhstan>> Article 26 shall be given" the full price for compensation. "[20]" equivalent compensation ", "full compensation", "according to the price compensation" are all "full compensation" is just another expression, the essence is the full compensation, full compensation.

In summary, in cases of extraterritorial legislation and case law, doctrine, and for the collection of compensation, all to pursue "full compensation" principle. [21] but in our case, whether the Constitution, the Land Management Law, Property Law, or to levy compensation should be neither do the principles adopted by the provisions to say that this legislation is to impose a major flaw. in the last decade the reform of land expropriation system design argument, the practice sector workers have proposed that the type of land should be divided into "public collection of non-business class" and "public procurement business class" categories, the former refers to the purpose of public interest and is non-operational sites, such as administrative agencies, military facilities, land, etc., which means all the public interest for the purpose of commercial land. In the calculation of land compensation payments, for the former, the compensation fee for the transfer of ownership of agricultural land prices, the latter for the transfer of ownership of agricultural land prices, combined with the planned use of agricultural land into state-owned building at After the division of land value increment income. In other words, the collection of two different types of compensation are to implement the principles and calculations of different standards. [22] The classification may help to improve the "requisition" the standard of compensation, we believe that, for different type of charge compensation principles were implemented different is inappropriate. no matter what type of public collection, the principle of compensation should be unified, partial and unfair and justice. In addition, scholars in China, and others are advocating a kind of should only be given to landless farmers "not fully compensate" the point of view. who hold this theory argue that land expropriation compensation can not be handled by the principle of equivalent exchange, the farmers get the land compensation should be a "low compensation" rather than "equivalent compensation ", the main reason is: the peasants free of access to land, there is no collective land of rural collective economic organizations and rural villagers labor condensation, and therefore can not be compensated by the principle of equivalent exchange. [23] on this view, we can not agree. and regardless of our farmers access to land is not "free" and the acquisition of land in terms of the State alone, can it be "paid"? Do state-owned land on the condensation of the country's labor it? Thus, from the state and collective ownership perspective of equality of ownership of land acquisition compensation of farmers have no reason to take the so-called "incomplete compensation" principle. In sum, to be taken of charge compensation principle, we fully endorse the view of scholars concerned: "Strictly the requirements of the rule of law doctrine of view, executive compensation ... ... can and should be the principle of full compensation to be imposed to fill the damage due to the purpose of levying and realizing the principles of equal protection of the Rule of Law and the requirements of social equity and justice. "[ 24]

Through the above analysis we can see, the collection of compensation for "full compensation" principle, and civil damages "full compensation" principle, the concept is completely interlinked. "Full compensation" to fill the purpose of levy be imposed by caused a total loss, "full compensation" to fill the purpose of private law violations resulting from all the damage, both purport is to make the victim or damaged are returned to the people before the damage or loss should be condition. Thus, civil damages "full compensation" principle, it can impose standards of compensation for, but we are more accustomed to the latter referred to as "full compensation" principles.

The principle of full compensation for collection, once established, then the method of charge compensation on the scope, compensation standards will be necessary to review and amendment. To land acquisition, for example, based on our current <"Land Management Law"> the provisions of Article 47, land acquisition, according to the original purposes of land expropriation compensation, specific to land expropriation, compensation covers only land compensation fees, resettlement subsidy payments and compensation for ground attachments and Qingmiao fee. the compensation range established by the provisions and compensation standards for all is unreasonable. for compensation range, the Qisuo three Buchang listed are a direct loss compensation, has not including indirect compensation. civil damages under the principle of full compensation, either direct damage or indirect damage, to determine if the damage is available, can obtain compensation, the same token, charge compensation according to the principle of full compensation, in addition to direct loss compensation, indirect losses should be included in the scope of compensation. as a result of the residual charge caused by the loss of, loss of expected benefits, etc., are all areas of indirect losses, to give extra-territorial legislation often levied to compensate for the indirect losses, and in our current collection law but lack of compensation basis. even for direct loss caused by land acquisition, "" Land Management Law "> also did not fully include, for example in respect of the above provisions do not include the right to land contractual management compensation loss. Fortunately, these defects to <<property law "under article 132 of the cover. In addition, <" Land Management Law "> of the above requirements established by the" output value multiple method "compensation standards, and extremely unscientific . The compensation standard is just an "income value" compensation, and do not take into account the property value of the land itself, but to land on its "original purpose" as a basis to establish the value of the practice income, but also did not take into account Dynamic changes in land use and the potential benefits of changes in the value. and for this defect, developed in China after the <<Property Law "> Article 42 states that have not been any change.

Civil damages under the principle of full compensation, non-property damage is compensable range. Then the charge compensation according to the principle of full compensation, not whether the property should be included in compensation for the loss of the scope? That is due to charge loss caused by mental, emotional, the subjective loss of profits, loss of profits, whether it be the scope of compensation ? from the perspective of comparative law, each jurisdiction provisions relating to expropriation compensation, often none of the compensation for moral damage mentioned, [25] or even more cases of this legislation is a negative attitude. such as the French Law Collection Compensation includes only the scope of "material damage" does not include the loss of spiritual and emotional account. [26] <"The Japanese use of the land received>> this issue not addressed, but in its official documents related to explanatory , also made a clear negative. [27] However, the Japanese authority doctrine is that as long as the view that the burden should be given fair and full compensation, then compensation for expropriation can not be limited to property damages, as long as the feelings of the victims brought against a special, if not compensation against the fair, then it should be the object of moral damages as a remedy. so authoritative doctrine of ideas: In Japan, in view of the ancestral land environment there is a special subjective feelings, are often not set up the sale and purchase transactions case to the independent spirit of the loss set up a compensation program, it is entirely possible. [28] South Korea shared the view that the authority of the doctrine, if the construction of dams, more than one village community is destroyed, the lives of communities because of this with Social Security meaning, and such a levy against all of the emotional beyond the tolerance range that should be (levied against the "land down from our ancestors", and therefore the collection of such cases should be considered reasonable compensation for the corresponding, namely, compensation for mental anguish. [29] in our current law on this issue without making clear admit to the same provisions, but also not a clear repudiation requirements. Therefore, more of our scholars advocated a result of the levy mental anguish, in principle, should be compensated. [30] We fully agree with this view. because under the charge of "full compensation" principle, since the spirit of the losses, the loss is to determine the existence of subjective interests, and it should be compensated, otherwise difficult that has implemented the principle of full compensation. According to the 2001 <<Supreme Court on the determination of tort liability for damages the spirit of a number of issues of interpretation ", not only infringement of moral rights may claim compensation for moral damages, for the body, bones and other objects in the against public order and good morals of the violations, as well as a symbolic character specific cause permanent memory loss or damaged items, and items can all claim the same moral damage compensation. One of the judicial interpretation of the meaning is that it broadens the mental damages scope, it applies not only to the field of moral rights infringement, and infringement of property rights can be applied to the field. Therefore, in our current law, compensation will be included in the spirit of the scope of compensation for expropriation, there is no real obstacle to the idea and system, and this also in line with the principle of full compensation requirements. As for the practical operation, for which the loss should be included in the spirit of the scope of compensation for expropriation is a matter of legislation, uniform collection of future legislation on this to make examples of the provisions or principles .

Damage to a third party is the scope of civil damages, the same token, the collection of compensation and also the loss in the third person. If the Taiwan region of China, "Land Law", "Land Acquisition Ordinance," to the "compensation after another," made the provisions of . the "Land Law" Section 216 provides: "expropriation of land, its use of the land in succession, can not always caused by the use of, or reduce the performance has never been used, the successive owners of land may request the required man-made land a considerable compensation. before the payment of compensation, not to exceed levy after another due to the low use of the land minus the amount prevail. "owner after another is not a collection of relations to be imposed, because it has not been Collection title after another loss, but the legislation still gives the reason why the compensation claim due to its business due to the implementation of collection is injured, but the cause of the purposes of levy collection, though not the act itself, but is closely related with the collection, which legislation will also impose the right to claim compensation charge relationship, extends to the third person. The current legislation on this charge without making provisions, the best for defects, therefore, according to "full compensation" principle, the future of the unified collection has to be clearly defined legislation necessary.

Complete civil damages under the principle of compensation, not only the victims have received a total damage Deyi compensation, while its proper meaning include: the victim should be compensated because of the extra profit. Therefore, the principle of civil damages , also includes a very important rule that the "profit and loss balance" rule. According to the profit and loss offset rules, the same damage on the victim by reason of interest, the obligation of reparation in damages should be deducted in the amount of compensation proceeds benefit the victims. So the rule is also in charge of compensation in its application? We believe that although in most cases charge compensation can be permitted under the principles of civil damages and the rules, but in some cases, this types of "permitted" is not "fully applicable", and must be revised. "gains offset the losses," the application of the rules is the case. In other words, the rules for the collection of compensation gains offset the losses in its application, but not fully applicable. Long words, the residual land acquisition compensation, the profit and loss offset rules do not apply, and in succession to the collection of compensation should apply. Residual land is for "partial expropriation" (expropriation of land, "a charge" of the formation, after which the collection will be for the purposes of public welfare to their impact on residual value, or is increased, or is declining. For example, if they are levied by the opening of land for public roads, public transport is convenient because of the residual land will appreciate, on the contrary, if they are levied the land for the construction of public garbage dump, it will lead to environmental degradation because of their leaving remnants of its value. to the appreciation of the case, the charge on the residual compensation for, whether it will generate an appreciation of the benefits should be deducted from the compensation price of the issue. In this regard, in the case and the doctrine of extraterritorial legislation point of view that there are different attitudes, with those who advocate gains offset the losses, there are those who claim or loss shall not be offset. [31] We agree with the latter view that compensation for expropriation in the residual land application of the rules no room for gains offset the losses. Such claims, reasons II: First, to the appreciation of the residual loss with the residual land is not the reason for the same injury occurred. residual charge due to the appreciation of the purposes of public welfare after the result in itself does not impose a direct result of acts, which the occurrence of the two is not "the same result", which gains offset the losses of the rules of elements does not match. Second, starting from the principle of equality, public welfare after the implementation of collection will not only benefit the residual land will also enable other associated equally benefit of adjacent land, if the residual benefit to owners and other landowners should equally benefit from the burden of costs related works [32], then there is no reason for this addition to all other beneficiaries of the residual effect differential treatment, requiring the owner of the residual land application of the rules for gains offset the losses and extra expense. foregoing two reasons, the residual land expropriation compensation rules applicable to gains offset the losses, not only with the constituent elements of the rule applies to inconsistent and there violate the principle of equality of public burdens. but in terms of succession to the collection of compensation, profit and loss offset rules have their application. This is because the damage after another because of imposition and the beneficial purposes of public welfare causes, the same reason , with elements of the profit and loss balance entirely consistent application of rules, of course, had its application.

In summary, the collection of compensation for loss of "full compensation" principle although civil damages "full compensation" principle, the contents of the system, not the same, but the former is increasingly in the modern law tends to the latter is an indisputable fact. This principle of convergence and confluence of the two, not only embodies the blend of public and private law and mutually influence each other's development trend of modern law, but also foreshadowed the modern concept of compensation for expropriation law transformation.

Third, from the "on the matter of compensation" to "human compensation" system, the concept of change and transformation

Traditional ownership of the collection of compensation to the compensation and the resulting deprivation of the economic loss as the basic content. In this regard, the traditional scope of compensation for expropriation is much smaller than the scope of civil damages. In essence, civil damages compensation is "individualism", and even property damage, the focus also lies in the "victim" back to the damage did not occur if the proper conditions, not to be damaged "property itself" back to should the situation. It is also why the civil law point of view civil damages have been adopting the "Interest" rather than "organization said." Because "Interest" focus on the victims before and after the total property damage to the changes and differences, their all measure of damages is the result of negative factors into account, even if the environment is the same special interests of victims being taken into account, and thus with the "full compensation" principle of civil damages fit. and "organization that" only focus on the "direct damage" itself, which only focus on the infringement of the "thing" itself, without the benefit of victims will not be taken into account all the factors, which determine the amount of damage it can only be a " minimum amount, "which is clearly contrary to damages for" full compensation "principle. [33] Compensation to adopt the traditional concept of the damage is actually above the" organization that "instead of" Interest ", thus giving it charge the same amount of compensation can only be a "minimum level" rather than full compensation. such a compensation philosophy is "materialism", not "human doctrines".

Thus, according to compensation for expropriation "full compensation" principle, the concept of modern compensation law has been imposed from "on the matter of compensation" to the evolution of "human compensation." So-called "human compensation" which means "people-centered", due to collected all the losses caused to be all filled. this concept in a specific system design to reflect the expansion of the scope of compensation for the property, and "life rights" into the two aspects of compensation. Expansion of the scope of compensation for property terms, mainly in indirect damages, the possible benefits and other incidental damages compensation, etc., Qian Wenyi be addressed. But the right to compensation for life, this is an emerging system area, the most representative of the Compensation Law "human compensation" of the modern trends, it is necessary to give further instructions.

In fact, scholars in China have long had the "people-oriented" theory of life, the right to compensation, [34] but their discussion is limited to the more traditional range of compensation, standards and methods, which did not have a big impact and practical effect. "life rights" proposal of the concept, can be traced back to 1948, the <"World Declaration of Human Rights>>. The document declared that Article 23, everyone has the right to" meet the living conditions of human dignity ", which made the "life rights" concept. the right to life is the core of the concept of "survival", but not limited to the right of survival is a broad concept, including economic life, political life, social life, cultural life and other aspects of society rights. Of course, the meaning of life is the most important right of access to social security rights, the rights to social benefits and enjoy a Healthy and civilized minimum standard of living rights. As <"World Declaration of Human Rights>> defined in Article 25 The: Everyone has the right to maintain himself and his family's Health and welfare of the required standard of living, including food, clothing, housing, medical care and necessary social services, unemployment, sickness, disability, widowhood, old age or In other circumstances beyond the control of loss of earning capacity, the right to security. [35] as a fundamental human right to life of the proposal, directly contributed to the evolution of the concept of compensation for expropriation and Institutional Change.

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In Japan, due to levy a result of the right to live against the compensation is called "life to build compensation" or "Health Industry Compensation", the Japanese scholars believe that the expropriation of land prices are "traditional" compensation issues, and life to build compensation belong to "modern" loss of compensation. life is not to build compensation of property to individual property of the value of compensation, but rather focus on the lives of the people as a whole, or the person's life itself, the design of compensation. that because of land expropriation, particularly due to the construction of reservoirs, the majority of villages were flooded, the loss of not only land, but also includes the lives of people living there themselves. Furthermore, the property of individual compensation received compensation, can not make be imposed in a strange return to the previous life, forced to suffer to be imposed to change the life, career change and so on. the right to compensation for such a life, Japan is only relevant legislative provisions impose a "hard duty" And do not be established as an independent claim basis. However, the Japanese point of view is the doctrine that the right to compensation for the life of abstract constitutional basis exists, it is necessary to build as an independent claim. [36] South Korea scholars share the view that compensation is to impose the past on compensation for the content of each property, but as there submerged dam construction, etc., while most residents moved is inevitable, and therefore bases its life without the compensation should be given to the new environment should start a new life The overall amount of the loss not only for the amount of compensation for individual property. This kind of personal life to build the total amount of compensation required, is the individualism of the (compensation is individualism, and materialism of the previous ( compensation is opposed to materialism. [37]

Japan and South Korea by the life of the right to compensation theory can be seen, the "doctrine of man" to build the lives of compensation is mainly aimed at large-scale land acquisition and implementation. China to build a similar life also exists on the principle of compensation. If the State Council promulgated under the 2006 <<medium-sized water conservancy and hydropower project construction land requisition compensation and resettlement regulations>> Article 3, Article 4, water conservancy and hydropower project construction land acquisition补偿和移民安置应当遵循的原则之一为"以人为本,保障移民的合法权益,满足移民生存与发展的需求",从而"使移民生活达到或者超过原有水平",根据2007年<<物权法>>第42条的规定,征收土地或房屋的补偿应当"保障被征地农民的生活"、"保障被征收人的居住条件".上述规定无疑在原则上确立与宣告了我国法上类似于日本与韩国的生活权补偿制度,这预示着我国的征收补偿理念正在由"对物补偿"向"对人补偿"转变.

但生活权补偿显然不只适用于水利水电工程建设等大规模的征地拆迁补偿,即使对于个别财产的征收,实际上亦同样有其适用的余地.如单独的一家一户的住宅用房屋征收,就同样存在一个是否给予了生活权补偿意义上的足额补偿问题.如根据我国现行的城市房屋征收补偿制度,"产权调换"和"金钱补偿"是常用的两种补偿方式.但在我国现行法上,这两种补偿方式实际上都不足以构成生活权补偿意义上的"完全补偿".因为在采用"产权调换"补偿方式时,被征收房屋与调换后房屋之间需找补"差价",而由于征收补偿金额与调换后新房之市价间存在巨大的"剪刀差",从而使得穷困的被征收人因找补差价而根本无法维持原有的生活水平和生活质量,若采用"金钱补偿"方式,同样由于征收补偿金额太低,而不足以在相同区位、相同居住环境的条件下购得与原来居住品质相同的商品房,被征收入的生活水平不得已而被迫降低.此外,就征地补偿而言,我国<<物权法>>第42条在补偿的方式上还提到了"安排被征地农民的社会保障费用"的补偿方式.为被征地农民提供社会保障,无疑是保障被征地农民长久生计的一项重要的生活再建措施,但遗憾的是,由于在实践操作中,被征地农民往往获得的只是"最低"的社会保障,因而其生活水平也因不能获得足额补偿而降低.因此,是否在不降低被征收人生产、生活水平意义上给予了足额的生活权补偿,已经成为了现代征收补偿法上衡量征收补偿是否"完全"的一项重要法则.我国现行征收立法中的许多补偿制度,都有待于依据该规则重新检讨与修正.

与传统的"对物补偿"理念相适应的一项补偿制度是,只有"合法之物"的征收才给予补偿,"违法之物"不具有补偿的资格.但在现代"对人补偿"的理念下, "违法之物"同样存在一个征收补偿的问题,最典型的就是"违章建筑"的征收问题.财产权的法律属性之一即在于"合法性",无合法权源而拥有之物不可能成为法律上的"财产权".如我国<<宪法>>第13条第1款规定:"公民的合法的私有财产不受侵犯."该规定之所以要加上"合法的"这一限定词,其意即在于此.因此,根据传统的"对物补偿"理念,只有合法的建筑才能成为征收的标的,违章建筑等不合法的建筑不是征收的标的,因而对违章建筑的征收就不给予补偿.如我国<<城市房屋拆迁管理条例>>第22条第2款规定:"拆除违章建筑和超过批准期限的临时建筑,不予补偿."应当说,对违章建筑不予征收补偿与民事损害赔偿的一般理念和制度是相吻合的.但根据现代法上的"对人补偿"理念,这一补偿制度就有重新检讨的必要.

如我国台湾地区,其虽然在"土地法"和"土地征收条例"中就违章建筑都作了"不予补偿"的明确规定,但在具体的落实中,其做法却并非如此.以1991年台北市颁布的"台北市举办公共工程对合法建筑及农作改良物拆迁补偿及违章建筑处理办法"为例,根据该办法的规定,对于"补偿费",仅"合法建物"可以领取, "非法建物"不得领取.而对于"违章建筑拆迁处理费",若是1963年前的违章建筑,可按合法建物重建价格的80％,计算,领取处理费,若是1964年至 1988年8月1日的违章建筑,则按合法建物重建价格的50％领取处理费.同样地,对于"拆迁奖励金",不论是合法还是违法的建物均得领取,若违章建筑限期内自行拆除者,以合法建物重建价格及违章建筑处理费的60％领取奖励金,若逾期自行拆除者,则减半发给奖励金.而对于"人口搬迁补助费",同样是不论合法还是违法的建物都可领取.[38] 由台北市的上述规定可见,对于违章建筑与合法建筑,在作为征收的标的上是一视同仁的,二者的区别只在于相关补偿费用的发给上,对于合法建筑全额发给,对于违章建筑按一定比例发给,而并没有将违章建筑排除于征收标的之外一律不予补偿.台北市的上述做法得到了我国台湾学界的肯定,如有台湾学者指出:"台湾地区违章建筑之存在,部分系出于政府长期未严格执法所致,人民对此违法状态多少产生一定之信赖,若于征收时不予适当之补偿,就信赖保护之观点而言,似乎有欠公允.是以,在征收违章建筑所在之土地时,似可考虑以一定之时间点为基准,对于所谓'旧有违章建筑'予以适当补偿."[39] 此外如德国,根据<<德国建设法典>>第95条第3款的规定:"对于基于公共法令规定,不用支付补偿随时得被拆除之建筑设施,对此只得基于公平原因之考虑而给予补偿."该规定一方面在原则上表明对于违章建筑不予补偿的同时,另一方面又肯定了在例外情形下可基于公平因素的考虑予以一定的补偿.德国立法之所以采此态度,主要缘于二战后初期,国内民生凋敝,国库空虚,政府无力为解决百姓的住宅问题提供帮助,所以为大庇天下寒民,而规定了对违章建筑的衡平补偿.[40] 在我国大陆地区的征收实践中,实际上也同样存在如域外法上给予违章建筑以征收补偿的做法.如在沈阳市和平区"罗士圈小区"的征收拆迁中,对违章建筑的拆迁就采取了非常人性化的措施,给予了违建户每户4.5万元的补偿. [41] 因此,我们主张,为迎合征收补偿的"对人补偿"理念,我国未来的征收立法应吸取域外法及我国实践做法中的解决方案,综合考虑违章建筑形成的不同原因(如客观的历史原因、为解决住房困难的原因等,酌情对违章建筑的征收予以一定的补偿.





Notes:
[1] 参见<<辞海>>,上海:上海辞书出版社,2000年,第1976页.

[2] 参见<<辞源>>,北京:商务印书馆,1986年,第2968页.

[3] 薛波主编:<<元照英美法词典>>,北京:法律出版社,2003年,第363,268页.

[4] 戴维·M·沃克:<<牛津法律大辞典>>,李双元,等译,北京:法律出版社,2003年,第300页.

[5] See Black's Law Dictionary, 7th edition, West Group 1999,p. 393,277.

[6] <<中国大百科全书·法学>>,北京:中国大百科全书出版社,1984年,第571页.

[7] 参见曾世雄:<<损害赔偿法原理>>,北京:中国政法大学出版社,2001年,第178页.

[8] 参见曾世雄:<<损害赔偿法原理>>,第15页.

[9] See Alastair Mullis & Ken Oliphant, Torts(影印本,2nd edtion, Palgrave Publishers Ltd.,1997,p.298.

[10] 我国<<民法通则>>第134条使用了"恢复原状"一词,其与"回复原状"为同义.

[11] 参见曾世雄:<<损害赔偿法原理>>,第17页.

[12] 参见叶百修:<<从财产权保障观点论公用征收制度>>,台湾:1989年自版,第76－79页.

[13] 参见陈新民:<<德国公法学基础理论>>(下册,济南:山东人民出版社,2001年,第486－487页.

[14] 参见陈新民:<<德国公法学基础理论>>(下册,第487页.

[15] 陈新民:<<德国公法学基础理论>>(下册,第490页.另请参见叶百修:<<从财产权保障观点论公用征收制度>>,台湾:1989年自版,第481页.

[16] 参见陈新民:<<德国公法学基础理论>>(下册,第491－492页.

[17] 参见陈新民:<<德国公法学基础理论>>(下册,第494－514页.

[18] 参见［日］盐野宏:<<行政救济法>>,杨建顺,译,北京:北京大学出版社,2008年,第251页.

[19] See Black's Law Dictionary, 7th edition, West Group 1999,p.277.

[20] 参见［美］路易斯·亨金等编:<<宪政与权利>>,郑戈,等译,北京:三联书店,1996年,第158页.

[21] 参见史尚宽:<<土地法原论>>,台湾:正中书局,1964年,第548页.

[22] 参见征地制度改革研究课题组:<<征地工作创新与改革探讨调研报告>>,载鹿心社主编:<<研究征地问题探索改革之路>>(一,北京:中国大地出版社,2002年,第40－41页.

[23] 参见王兴运、郭琛:<<低值与等值:谈不动产征收补偿制度的两种形态>>,载房绍坤、王洪平主编:<<不动产征收法律制度纵论>>,北京:中国法制出版社,2009年,第358页.持相同观点者,还可参见李集合:<<土地征收征用法律制度研究>>,北京:中国政法大学出版社,2008年,第151页.

[24] 王太高:<<行政补偿制度研究>>,北京:北京大学出版社,2004年,第144页.

[25] 但据学者考证,澳大利亚对土地权利人的某些精神损失予以慰藉金补偿.参见李集合:<<土地征收征用法律制度研究>>,第141页.

[26] 参见王名扬:<<法国行政法>>,北京:中国政法大学出版社,1988年,第:393页.

[27] 参见［日］盐野宏:<<行政救济法>>,杨建顺,译,第254页.

[28] 参见［日］盐野宏:<<行政救济法>>,杨建顺,译,第254页.

[29] 参见［韩］金东熙:<<行政法I>>(第9版,赵峰,译,北京:中国人民大学出版社,2008年,第420页.

[30] 参见金伟峰、姜裕富:<<行政征收征用补偿制度研究>>,杭州:浙江大学出版社,2007年,第118页,王太高:<<行政补偿制度研究>>,第158－159页,司坡森:<<论国家补偿>>,北京:中国法制出版社,2005年,第157页.

[31] 参见史尚宽:<<土地法原论>>,第561页.

[32] 我国台湾地区"工程受益费征收条例"第2条规定:"各级政府于该管区域内,因推行都市建设,提高土地使用,便利交通或防止天然灾害,而建筑或改善道路、桥梁、沟渠、港口、码头、水库、堤防、疏浚水道及其他水陆等工程.应就直接受益之公私有土地及其改良物,征收工程受益费."
[33] 有关损害的"利益说"与"组织说",详请参见曾世雄:<<损害赔偿法原理>>,第118－131页.

[34] 如刘红、周国新:<<刍议以生活权补偿理论考量农村征地补偿标准>>,<<农村金融体制改革>>2004年第12期.

[35] 以上有关"生活权"的论述详请参见杜钢建:<<析生活权与生存权>>,<<法学探索>>1996年第2期.

[36] 参见［日］盐野宏:<<行政救济法>>,第255－256页.

[37] 参见［韩］金东熙:<<行政法I>>(第9版,赵峰,译,第417页.

[38] 参见陈明燦:<<财产权保障、土地使用限制与损失补偿>>,台湾:翰蘆图书出版有限公司,2001年,第124页.

[39] 李建良:<<损失补偿>>,载翁岳生主编:<<行政法>>(下册,北京:中国法制出版社,2002年,第1725页.

[40] 参见陈新民:<<德国公法学基础理论>>(下册,第506－507页.

[41] 参见<<罗士圈:城市危改的民本模式>>,at http://news.mzyfz.com/times/a/20071012/210300_2.shtml.检索日期:2009－05－16.

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