摘要
日本土地征收法律制度以《土地收用法》为中心,以《城市规划法》等特别法规定为补充,构成了一个完整的体系。征地程序分为事业认定和收用裁决两个阶段。在公共性保障方面,日本首先通过立法列举的形式限定收用适格事业,再以判断过程型司法审查方法确保了征地计划的具体公共性。这其中,"根据规划的公共性确保"理论要求在审查城市规划事业公共性的同时必须对城市规划本身进行审查。在损失补偿方面,原则上应当采取完全补偿,但法律将补偿金计算时间点提前到发布事业认定告示时,排除了开发利益,一定程度上有着适当补偿的含义。《土地收用法》中的补偿概括性条款为今后扩大补偿范围提供了巨大解释空间。我国的财产征收制度在公共利益保障模式、公共利益认定方法、补偿标准和范围等方面都存在一些问题。日本的立法、学说和判例可以为我国解决这些问题提供积极的参考。
Being centered on Compulsory Purchase of Land Act and complemented by a number of special laws and regulations represented by City Planning Act, the Japanese legal system of land expropriation constitutes a complete system of law. The procedure of land expropriation can be divided into two stages： identification of projects and determination on expropriation. In terms of ensuring the publicness of a project, Japan has first defined the eligible causes for the application of expropriation by listing them in the legislation, and then used the process of judicial review by the court to ensure the publicness of a specific individual land expropriation plan. In this process, the doctrine of ＂guaranteeing the publicness by planning＂ requires that, while examining the publicness of the city planning projects, the city planning itself must also be examined. In terms of loss compensation, the doctrine of full compensation should be adopted in principle. However, since the period used to calculate the compensation has been advanced by the law to the time when the identified project is notified, the benefit of development has been ruled out, which, to some extent, implies the application of the doctrine of appropriate compensation. The phrased clause on compensation, as contained in the Compulsory Purchase of Land Act, has provided huge room for broad interpretation of the scope of compensation in the future. There are still many problems in the current expropriation system in China, such as those relating to the mode for safeguarding public interest, the method for the identification of public interest, and the standard and scope of compensation. The relevant legislation, theories and cases in Japan may well provide positive references for the solution of the abovementioned problems in China.
出处
《环球法律评论》
CSSCI
北大核心
2015年第4期121-145,共25页
Global Law Review
