A different look at demolitions
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But the deletion of two key points from the second draft has created a fresh controversy. On the reconstruction of old or dilapidated buildings, Article 13 of the first draft said the government could only expropriate a building if 90 percent or more of the homeowners agreed to the demolition. And articles 24 and 25 stated that unless at least two-thirds of the homeowners who would lose their houses agree to the compensation package, and at least two-thirds houseowners had signed the compensation package contract within a time frame, a building cannot be demolished. But these points, known as "majority rule", are missing from the second draft.
As key provisions protecting homeowners' rights, their deletion is regarded as regression, forcing many to say the second draft still favors local authorities. Jiang agrees with the critics.
Some people allege that the definition of "public interest" in the regulation is very broad. But Jiang says the meaning of public interest is complicated; it is hard to define it in simple terms. The main problem is that "we haven't distinguished public interest from commercial interest" because of the lack of a free land transfer market.
Irrespective of whether land today is used for commercial purposes or public interest, only a government can appropriate it and transfer the right to use it. Our laws regulate that rural land is collectively owned, and though farmers have the right to use it, they cannot dispose of it.
Jiang says this problem can be solved if only the government appropriates land for demolition in public interest and provisions are made to give farmers a larger say in the auction of land meant for commercial use.
But Jiang says the regulation will not include such a revision in the name of "public interest", because that would call for a revision of the Land Management Law first, a process that cannot be completed in the short term. "And that's why I think the most crucial thing to do is to revise the Land Management Law."
Jiang and his colleagues and their students began their new round of efforts on Dec 27, 2010, by submitting their suggestions on the second draft to the State Council's Legal Affairs Office. In their written submission, under the name of the Research Center for the Constitution and Administrative Law of Peking University, they suggested 11 major revisions, the most important being the appeal to reinstate the "majority rule". "There may be negotiations over the specific ratio of agreement", Jiang says, "but homeowners should have a say on demolitions." The scholars' written submission says that "at least two-thirds of the homeowners should agree to a demolition" and the same percentage should "sign the compensation contract" before a building is demolished. This will help "maintain the 'threshold' of demolitions and guarantee that people affected the most are not excluded from the decision-making process leading up to a demolition".
