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Urban development and renovation of old city areas in Beijing has been accelerated in recent years, forcing many residents to move out of their old houses and resettle elsewhere.
Understandably, the process has triggered numerous complaints.
What has led to so many disputes is the country's Administrative Regulation on Urban Housing Relocation -- the constitutionality of which is now being questioned by many legal experts, according to an article in Beijing-based Caijing magazine.
In the renewal of old city areas, the tug-of-war between protection of siheyuan, a traditional Chinese architecture of quadrangles, and the attempt to erect new highrises has become the focus of public opinion.
The renovation of Beijing's old city areas seems to be a cultural issue.
"However, in recent years, I realized gradually that protection of cultural relics has to depend on the weapon of law," Hua Xinmin, a firm protector of siheyuan, was quoted by the magazine as saying.
"But if siheyuan on the government's list of protection are also private property, their protection is not only a cultural issue, but a legal issue of private property protection."
Some residents involved in such disputes have cited the rights protection articles in the Constitution, the Land Administration Law, the Contract Law and the General Principles of Civil Law to safeguard their houses and right of land use. In China, land is owned by the State and individuals may only have the right of land use.
But the relocation authorities and relocation companies also have their legal reference -- the Administrative Regulation on Urban Housing Relocation.
The regulation has been approved by the State Council and took effect on November 1, 2001. It stipulates that if a relocation agreement cannot be reached between relocatees and relocators or among relocators, relocatees and house tenants, it should be adjudicated by the department in charge of relocation affairs. If the individuals involved refuse to accept the judgement, he or she can file a suit to the court but the relocation can continue during the process of suit.
Such a stipulation enables the administrative departments to circumvent the court's power of law enforcement, the article quoted a judge as saying.
The regulation also states if the relocatees and house tenants have not moved out from houses to be renovated within the prescribed time, the local government can empower related departments to pull down the houses by force or apply to the court to do so.
The administrative departments are thus authorized with the power of forcible relocation. And the relation between the administrative departments and relocatees becomes unequal.
Besides relocatees' discontent, many legal experts say the regulation can lead to infringement upon the rights of citizens, according to the article.
Wang Weiguo, a professor from China University of Politics and Law, said in the article the regulation gives the government or even real estate developers the power of forcible relocation. It cannot discipline the order of relocation and protect citizens' right but in reality allows the government to use administrative power to violate citizens' private rights.
Gao Zhisheng, a lawyer, cited the Contract Law to question the regulation.
The contract signed between relocators and relocatees is a civil contract and any administrative authority cannot deprive citizens of their freedom to sign or not to sigh the contract, Gao said.
He said the regulation also goes against the Constitution, the general principles of civil law.
The Constitution stipulates that citizens' property rights should be defined by basic laws, which must be worked out by the National People's Congress or its standing committee.
The regulation is an administrative regulation. Its legal validity is inferior to the Constitution and other basic laws. Since the regulation goes against the Constitution and other basic laws, it has lost the legal basis for validity.
However, in real life, forcible relocations take place from time to time while the court refuses to accept suits filed by dissatisfied relocatees. Since 1995, more than 20,000 such cases in Beijing have been refused by courts at various levels, the article said.
Shen Kui, a professor from Peking University, pointed out in the article that the core issue is the incompleteness of China's basic law framework. In many cases, those laws only have general principles without details for implementation. This leaves loopholes for administrative departments to set up specific regulations to maximize their own interests, Shen said.
(China Daily HK Edition December 30, 2003)
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