房屋拆迁的行政法思考：兼评最高人民法院《关于受理房屋拆迁、补偿、安置等案件问题的批复》第二项之非合理性
Thoughts on Building Removals in View of Administrative LawWith Comments on the Un-reasonability of Article II in the Relevant Official Reply Remarked by the Super Court
冯其江
【摘要】摘要：拆迁补偿安置合同在《
合同法》中没有被涉及，公权力的介入表明此类合同不纯粹是传统意义上的民事合同。拆迁补偿安置协议是行政合同，合同的目的在于公共利益，合同的成立须双方意思表示一致，但合同中行政主体（拆迁人）一方享有特权；被拆迁人通常只能寻求经济利益平衡。未能签订拆迁协议的所谓“钉子户”法规规定了强制拆迁来解决，强制拆迁的主体是有关的执法部门，强制拆迁前要经有关行政部门裁决，此类裁决的性质比较复杂。拆迁纠纷行政复议前置是必要的，而
最高人民法院《关于受理房屋拆迁、补偿、安置等案件问题的批复》之司法解释则突破了原行政法规拆迁条例之规定，违法且不合理。拆迁补偿是行政补偿；引发的诉讼是行政诉讼；房屋拆迁关系是行政法律关系。
ABSTRACT: The Compensation Contract of Removal and Arrangement is not discussed in Contract Law. The public rights have concerned much about such a contract, so it is not traditionally a civil contract. Agreement on Removal and Arrangement is an Administrative Contract, of which the purpose is for the public interest. Establishment of the contract hinges upon the agreement of parties. In such a contract, the administrative principal part (the party to remove) is entitled to some privilege. However, the general way for the party to be removed is to ask for economic remedies. As for those parties who refuse to establish such a contract with the government, the relevant regulations have settled a rule of compulsory removal, of which the principal part is the executive government. The nature for the administrative government to rule in advance a compulsory removal is quite complicated. Therefore, administrative reconsideration in advance is a must for any removal disputes. However, in the relevant official reply remarked by the Super Court, the judicial explanation is in conflict with the present regulations on the rules of removals, which is unlawful and unreasonable. The Compensation Contract of Removal and Arrangement is an administrative one, which triggers the administrative lawsuits. Therefore, the legal relation of building removal is the one among those of Administrative Law.
【全文】
民商法与行政法边缘学科学术论文习作
房屋拆迁的行政法思考
-- 兼评
最高人民法院《关于受理房屋拆迁、补偿、安置等案件问题的批复》第二项之非合理性
冯 其 江 安徽省芜湖市中级人民法院 241000
Qijiang Feng Appellate Court of Wuhu City, Anhui, China P.C.: 241000
汪 丽 芜湖市新芜区人民法院 241000.
Li Wang District Court of Xinwu, Wuhu, Anhui, China P.C.: 241000
