1. Local government
Obtain land transfer income.
Pursue political achievements.
Officials "rent-seeking".
Follow-up management income.
2. Developers
As far as possible, reduce the transfer fee of land use rights and the compensation fee for relocated households, and at the same time increase their repurchase price.
Avoid door-to-door negotiation pricing and strive for government enforcement.
3. Relocated households
Through the transfer of land use rights and housing replacement, the housing welfare will be improved and the compensation for demolition will be maximized.
Pay a high cost or lose due benefits, and become a victim of the "new enclosure movement".
4. Other relevant institutions and personnel
In practice, commercial banks are often the key fourth party in the relationship of house demolition, which is mainly reflected in the fact that government departments and most developers have signed agreements with banks in advance, entrusting banks to provide unified payment and reception of demolition compensation. In addition, the relatives of the demolished people can merge with the demolished people, and intermediaries such as notary offices, auction houses, law firms, accounting firms and security companies will also participate in the game relationship of demolition and resettlement in different ways. Based on the convenience of analysis, it is not considered here.
Secondly, the game analysis of the main behavior and its legal dilemma under the adjustment of the demolition regulations.
To sum up, based on the existing legal framework and demolition practice, we summarized the interest orientation of the parties (government, developers, demolished people) and the behaviors under the guidance of legal rules in Jiahe case, and concluded two types of housing demolition relationship models: abnormal (malignant) and normal (benign), from which we can intuitively show the actual situation of the legal relationship of demolition.
(A) two types of demolition relationship model
1, abnormal (malignant) demolition relationship model
In this unusual relationship model of demolition, the interests of the government and enterprises are the same, while the demolished people become the opposite party under the oppression of administrative and civil forces. At this time, the developer is more like an invisible man behind the scenes. It adds up the above-mentioned N divided compensation fees for demolition and relocation, becomes a total cost expenditure, and gives it to the government. Then the government directly faces the demolished people, recovers the land use right of the demolished people, defines the compensation standard, limits the demolition period, and intervenes in the demolition dispute through public power, thus locking the civil legal rights of the demolished people (such as the right to know, the right to claim compensation, the right to relief, etc.). ) and realize its cost-effectiveness optimization. However, the government unilaterally recovered its land use right as the national land owner without the consent of the demolished person, and then transferred it to the developer at a high price to obtain a high land transfer fee. After the development is completed, taxes and fees will be levied year by year according to commercial land, with outstanding achievements and good benefits. This result is a "win-win" choice for the government [1] and developers. But what about the people who were demolished? In the public welfare demolition project, it is impossible to resist the forced demolition by the government and it is difficult to apply for administrative rights relief; In the private demolition project, the developer applies to the government for compulsory execution, and the right to appeal is correspondingly weakened, which makes it fall into a helpless situation.
2. Normal (benign) relationship mode of house demolition.
In this mode, the developer and the demolished enjoy the same civil legal status. If a developer wants to obtain a piece of land for commercial purposes, he must follow the market trading rules and negotiate compensation with the actual right holder of this land-the demolished person on an equal footing (the developer should follow the law of value and negotiate compensation separately with many demolished people, and his demolition budget should be divided into several parts according to the number of demolished households). The items, amount and calculation standard of negotiated compensation shall also be determined by both parties through consultation. People who are demolished can not only negotiate compensation for houses and buildings. In this way, after the demolished person and the developer have an equal consultation on what kind of compensation they will get for giving up their rights, the agreement reached by the two parties will have the nature of a civil agreement and be binding on both parties. If either party fails to perform, it can be resolved through legal channels such as appeal and civil litigation, rather than government coercion. At the same time, the government does not directly control and interfere with the initiation and implementation of the demolition behavior, nor does it mix its own intentions (whether public or private) into the demolition process. It mainly plays the role of supervisor and neutral arbitrator in the process of demolition, and is responsible for the examination and approval of demolition plan, as well as the examination and supervision of construction qualification, environmental impact assessment report and capital availability rate.
(B) the current legal dilemma of urban housing demolition disputes
There are many factors that cause a series of vicious incidents and disorder (abnormal demolition mode) of house demolition at present, which can be summarized as the following legal dilemmas:
1. Deep institutional contradictions in the stage of making up old historical accounts.
2. There is a lack of coordination between land use rights and housing ownership norms, and the Regulations on the Administration of Urban Demolition is incompatible with the provisions of the Constitution and the Property Law.
The Constitution of People's Republic of China (PRC) stipulates: "Urban land belongs to the state. ..... rural and suburban soils
3. The legal status of the developer and the demolished person is not equal.
4. Excessive intervention of administrative power, overlapping roles of administrative licensing, administrative adjudication and administrative execution, and lack of supervision mechanism of administrative behavior have damaged the credibility of administrative organs.
5. Civil relief can not be supported by the public power of the state, and it is difficult to effectively safeguard rights.
6. The current demolition laws and regulations do not provide perfect compensation standards for demolition, and do not consider the "non-economic losses" of the relocated households.
7. The statutory pre-procedure of forced demolition is not perfect, the mechanism of publicity and public participation in land transfer and demolition is lacking, and the mechanism of demolition evaluation and legal supervision is not perfect.
3. Some legislative suggestions and countermeasures
(a) the implementation of constitutional amendments to ban illegal demolition.
(2) Relevant laws and regulations should clearly define the demolition behavior as the need of "public interest" and make compensation before "expropriation" or "expropriation". [2]
(three) to clarify the nature of the administrative act of demolition, strictly limit the authority of demolition, and promote the unity and concretization of the responsibility and rights of the demolition subject.
(four) all stages of demolition (including hearing, publicity, evaluation, compensation, etc.). ) are open and transparent.
(5) Broaden land consolidation funds and financing channels, determine reasonable compensation standards, adjust measures to local conditions, and adopt various effective ways to make fair compensation to ensure the implementation of the relocation and resettlement plan.
(six) on the basis of judicial independence, reasonably solve the civil litigation caused by commercial development disputes and encourage demolition.
The independent consultation operation of the parties involved in the demolition should provide diversified dispute settlement methods and legal aid for those residents and social related groups who wish to avoid forced demolition through consultation and settlement.
Section 2 Legal and Economic Analysis of Crime and Modernization
A summary of the research on crime (rate) and modernization
To analyze the criminal phenomenon in the process of modernization, we need to carefully sort out and define the following three interlocking preconditions.
(1) What is a crime?
Crime is a worldwide social phenomenon, and scholars all over the world have made abstract theoretical or legal research on complex forms of crime.
(2) What is the cause of the crime?
The definition of the concept of crime is closely related to the discussion of the causes of crime. As far as the causes of crime are concerned, the early research mainly focused on anthropology, biology and psychology, and later scholars paid more and more attention to the role of social factors and conducted in-depth research from sociology, economics, ethics and political science.
(3) What is the relationship between crime rate and modernization?
As the main tool of crime statistics, the change of crime rate is very important for understanding and evaluating crime and its relationship with modernization.
It plays an irreplaceable role. [3] Crime rate refers to the ratio calculated by comparing the number of criminals or criminal cases with the total population in a certain time and space, which is usually expressed by 1 10,000/10,000.
Comparison of the Relationship between Crime Rate and Modernization
In practice, people often get confused when comparing the crime rates of different countries: why are they beautiful as developed countries?
China's crime rate is so high, but Japanese and Nordic countries are very low? As underdeveloped countries, why is the crime rate so high in Latin American countries and relatively low in former socialist countries in Eastern Europe? Is it economic reason, rule of law reason or cultural tradition? Different scholars have given completely different answers. Even when analyzing the crime rate of a country, researchers are used to listing a series of crime determinants, but when everything is taken into account, it is impossible to conduct research. It is true that the influencing factors of crime are complex, but we still need to grasp the core and outline, extract one or two key macro variables between crime rate and social and economic development, and deeply analyze the internal relationship between modernization transformation and crime rate.
Trend analysis of the relationship between crime and modernization
(A), the test of existing assumptions
It should be noted that due to the different definitions of "crime" in the three countries, the standards and scope of "criminal acts" that should be punished in criminal laws of different countries are quite different. Therefore, the absolute amount of crime rate cannot be hard to compare. But even so, the trend changes shown in these three pictures are still very worthy of attention. These three pictures have something in common, for example, they all have a straight-line rising stage; There are also differences. For example, China has a period of relative stability, South Korea has a period of sustained and slow rise, and the United States has a period of decline (after 1980).
(2) The logical form of crime rate and modernization process.
We use Logistic, which is commonly used in life cycle theory, that is, there is a period of steady growth first and then a period of rapid growth, and when the growth reaches saturation, it fluctuates smoothly around this limit. Logistic curve equation was first put forward by Verhurst in 1838. Originally used to describe the population growth trend in a limited environment. Biological species in nature rarely grow linearly, and because there are always various factors to inhibit their growth, the population growth rate is a variable and extraordinary in a limited environment. To some extent, criminals are also similar to a group: a group of individuals with certain physiological characteristics in a specific environment, space and time. We examine the relationship between the whole crime and the modernization process: the crime rate rises slowly in the early stage of modernization (initial stage), rises rapidly in the middle stage of modernization (take-off stage) and fluctuates smoothly in the later stage (stable development stage), which is exactly the information reflected by combining the previous three pictures.
We can theoretically describe the Logistic curve as follows: in the early and late stages of modernization, the crime rate presents two relatively "steady-state" situations, that is, the crime rate presents a slow fluctuation trend, which means that the social structure and order are relatively stable at this time. However, there are differences between the two steady States: in the initial stage, it is rigid and stable, conservatively maintaining pre-modern order, slow social development and low crime rate; In the later stage, it is stable in development, qualitative stability in quantitative change, dynamic balance in society and a certain high crime rate. The mid-term is the so-called "modernization transformation stage", which connects the two steady States before and after, and is a stage of drastic changes in social system, economic structure and cultural values, from quantity to quality. This kind of social "quality" change will often break through people's psychological endurance limit, leading to the disintegration of the old order and the invalidation of traditional rules and customs, the expansion of people's desires, the intensification of conflicts of interests and rights, and the increasingly tense social relations, which will lead to a sharp increase in crime, and the crime rate has a strong positive correlation with modernization.
(c) Regression analysis and theoretical explanation of the "logical" hypothesis.
Only the United States carries out quadratic curve fitting is meaningful. Actual fitting results,
But our problem is that if the quadratic curve is the real relationship between crime rate and modernization, then the crime rate in the United States will continue to decline after experiencing the highest point, rather than rising or fluctuating. This conclusion is unacceptable in theory and practice. Because crime is a dynamic concept, with the evolution of the times and the emergence of new things, the types, nature and forms of crime will change, the old charges will disappear, new criminal acts will be defined, and the trend of crime reduction will not last. We will elaborate on this point below.
Fourth, some conclusions.
Through the above detailed analysis, we have a clearer understanding of the current crime situation in China. Some of these conclusions are of guiding significance to the strategic planning and criminal policy of building a harmonious socialist society in China.
Firstly, this paper adopts the matrix analysis method of HDI- Gini coefficient crime victims, and divides the countries in the world into four types according to HDI and Gini coefficient. Through the analysis of variance of two-factor interaction, it is concluded that the severity of a country's crime situation is significantly related to its overall level and structure of social and economic development, and the overall level and structure differences independently and interactively determine a country's macro-crime situation.
Secondly, this paper establishes a short-term model from micro to macro and from cross section to sequence, and draws the conclusion that the change of short-term crime rate is closely related to the speed of economic development and the gap between the rich and the poor, while the speed of economic development is negatively related to the growth of crime, and the gap between the rich and the poor is positively related to the crime rate, thus providing ideas for controlling the growth of crime rate.
Thirdly, on the basis of analyzing the historical data of crime rate in China, South Korea and the United States, starting from the biological significance of logistic curve, it is concluded that the relationship between crime rate and modernization is in the shape of logistic curve in the long run, that is, in the initial stage of modernization, the crime rate remains stable, in the period of rapid development, the crime rate almost rises linearly, and then remains stable in the later stage, showing "two steady States and one transition".
Fourthly, according to the model analysis of this paper, our further inference is that, as a country with just started economic development, it is inevitable that the social crime rate in China will continue to rise ("crime wave"), and this trend will remain for a long time, which highlights that China is in the synchronous stage of modernization and rapid rise of crime rate since the reform and opening up.
Fifth, it should be emphasized that any mathematical model and statistical data are relative in value to the study of social problems. There is no absolute science that can completely and accurately explain social phenomena, nor can we expect science or statistics to decide or create anything.
Economic analysis of "strike hard"
(1) Overview
Punishing crimes and maintaining social order is the basic national policy and long-term policy of the Party in the primary stage of socialism, and it is also an important part of Deng Xiaoping's thought of democracy and the rule of law. This principle and policy was first put forward by Comrade Deng Xiaoping in 1982. He said: "The fight against economic crimes ... must be swift and severe. ..... Some criminals with particularly serious circumstances must be given the severest legal sanctions. It is impossible to stop this wind without a little momentum! This problem should be dealt with seriously and paid close attention to in the near future. Generally speaking, it should be dealt with strictly in time, and it should not be relaxed or too light. ..... This is a long-term and regular struggle. " [4] Later, in view of the massive increase in criminal cases and malignant cases in society since a stage, he further pointed out: "Solving the problem of criminal offences is a long-term struggle and needs to be done from all aspects. Now it is abnormal, and it is necessary to focus on cracking down on the law and strictly administering it. " "We said to strengthen the people's democratic dictatorship, which is the people's democratic dictatorship. When it comes to humanitarianism, we protect the safety of the greatest number of people. This is the greatest humanitarianism! "
(B) "Strike hard" empirical and normative analysis
The economic analysis of "strike hard" has two preconditions. First, "strike hard" the scarcity of resources. The country's criminal punishment means are always limited and cannot be overused, and the deterrent power of heavy punishment is also decreasing, and its ability to improve social security has cost-utility boundary; Secondly, in the new historical period, the number and harm of social security crimes in China have increased, and vicious cases such as theft, robbery, smuggling, drug trafficking and murder have occurred on a large scale. In sharp contrast, although the judicial and public security teams are growing, the related financial expenditures are increasing, and the "strike hard" rectification actions and various special struggles have been carried out continuously for more than 20 years since the reform and opening up, it is still not enough to maintain the normal operation of the criminal law. [5] In addition, the power of judicial law enforcement is relatively weak, and law enforcement agencies at all levels generally have problems such as insufficient penalty supply, limited police force and backward trial and reconnaissance equipment, which makes the contradiction between the operation of criminal law and the relative lack of social and financial support more prominent. This provides a theoretical basis for us to grasp the necessity and possibility of "strike hard" from the deep economic roots. Therefore, it is undoubtedly of great practical significance to analyze the advantages and disadvantages of "strike hard" from a new perspective of penalty efficiency.
From a macro point of view, "strike hard" has the characteristics of "concentrating superior forces and annihilating criminals" strategically, and it has the characteristics of paying attention to propaganda and mobilization and mobilizing the masses to participate in tactics. In fact, strike hard is to give consideration to all aspects of legislation, judicature and law enforcement, and to use all kinds of penalty resources (including people and property) in a centralized way, so as to obtain the benefits of focusing on "annihilation war" in maintaining social stability and countering the "crime wave" in accordance with the "deterrence hypothesis" in law and economics (assuming that the number of crimes depends only on the expected penalty level). Punishment is the price paid by criminals to buy crimes, and the number of crimes will decrease with the increase of expected punishment, and the expected punishment is expected. [6] Therefore, focusing on human and material resources to crack down on criminal crimes on a regular basis, that is, punishing criminals above the general level of criminal punishment in society, so that the cost for criminals to obtain illegal benefits is extremely high, which can deter crimes, protect the people and reduce the crime rate. It can be seen that "strike hard" is realistic and reasonable, and its success lies in improving organizational efficiency and detecting conviction probability, and exerting the scale effect of expected punishment.
(3) Some conclusions
Through the analysis of the phenomenon of "strike hard" in many aspects and at many levels, we believe that criminal crimes and social security problems are social phenomena for a long time to come, and they are the result of the comprehensive influence of the growth and decline of various positive factors that inhibit and reduce crime and various negative factors that induce and breed crime in a certain period of time. As a realistic legal form under specific social and historical conditions, "strike hard" has certain inevitability and rationality, especially considering the current social transformation period. However, it should be pointed out that "strike hard" is a special product of social transformation, so its duration, like its historical background, should have a basic time limit. Therefore, we put forward a general plan to improve China's criminal legal system.
First, strengthen comprehensive social improvement, establish and improve the social operation mechanism, and treat both the symptoms and root causes of illegal and criminal activities.
Second, change the inefficiency of criminal law and reduce the cost of criminal legislation and justice.
Third, reform the legislative and judicial systems and further strengthen law enforcement inspection and supervision.
Fourth, adapt to the changing situation, strengthen forecasting research and improve the overall efficiency of political and legal organs.
Fifth, strengthen spiritual civilization, especially moral construction, and cultivate citizens' modern legal spirit.