"Law eye observes " the collective choice of person of 300 thousand law
Origin / one quadrangle author of Shanghai of riverside river balance / Hou Weiqing, Zhang Jiawei
To promote the judgment of judicatory ability of the judge and case quality in the round, promote kind of proposal value orientaton and legitimacy to unite further, realize judicatory justice, court of the first intermediate people explores Shanghai mechanism of kind of job of summary of case judge method, the problem of sex of the catholicity in carrying pair of of all kinds cases, trend undertakes summing up, outstanding trial of the judge experience and juridical method have abstracting, form the standard of kind of case judge and method.
This periodical is sent " the experience in successive dispute curtilage the cognizance train of thought that base building tears open change case and method " .
The experience in successive dispute curtilage base building
Tear open the cognizance train of thought of change case and method
Curtilage the main component that base system is system of management of our country land, it is the special system that guarantees farmer housing pay effectively. The experience in hearing successive issue curtilage base building tears open change case, should pay attention to protection curtilage inside base building live actually the person's interest. The main train of thought that this kinds of case tries divides on the whole for two parts: It is analyse is produced, will be differentiated to come out from inside the total profit that tear open change by the bequest limits of heir; 2 it is successive, undertake allocation between heir according to successive regulation.
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Basic details of a case
Case one: Involve the interest tearing open change of foreign staff to allocate
Wu Mou and Xing armour Yo have Xing Yi, there still are Xing armour parents and grandmother in the home. Building of Home Xing Jia tore open change 2010, bright department carries to contend for in the agreement that tear open change curtilage base building has card area to be 264.39 square metre, cognizance population 6 people namely Xing Jia, Xing Yi and Xing armour parents, grandmother, make clear " nonlocal son-in-law Wu Mou + 1 person, add up to population 6 people " . This door maintains an area finally to be " 264.39+5.61 (population) " square metre. Wu Mou and Xing armour divorce after, the opinion of the interest that tear open change that both sides should enjoy with respect to Wu Mou is differ.
Case 2: Involve the interest tearing open change with much privilege to allocate
Kang Mou and second of in the right way of square armour Yo, square third. Building of base of Kang Mou messuage tore open change 2007, kang Mou, Fang Jia, Fang Yi undertakes finding a place for as. Building of the change that be torn open is Kang Mou ancestral old curtilage, big and single young person is fastened as a result of Fang Yi when tearing open change, reason its are calculated according to two people, final this interest tearing open change that acquires 4 population. Fang Yi is as fourth as in the right way of Yo of Shang Mou marriage 2011. 2013, Fang Jia, Fang Yi died in succession 2015, all did not make a will before one's death. Successive issue produces after, shang Mou, Fang Ding and Kang Mou tear open change the Fang Yi in interest allocation should hold share dissident.
Case 3: Involve a building to turn over those who build pair of successive bequest to allocate
Huang Jia and Hang Mou Yo have Huang Yi, yellow third. Experience case curtilage base building primary area 49.5 square metre, department yellow armour, Hang Mou is all. 1991 building curtilage base access is registered in Huang Jia and Huang Yi under one's name, huang Jia, Hang Mou died in succession 1999, huang Yi, Huang Bingjun already did not live in this building. 2007, huang Yi is in did not ask for so that break up below the circumstance of Huang Bingtong meaning build this curtilage base building was dealt with break up establish procedures, turn over area of the building after building to turn into 109 square metre. This building tore open change 2015, cognizance building of the unit that tear open change puts in Huang Jia, Huang Yi 's charge all, and according to floor area 109 square metre find a place for the interest that tear open change. Huang Bingzhi sues a requirement to break up parental bequest after dawn, both sides turns over the many area after building to whether belong to bequest limits to produce difference to the building.
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Cognizance difficulty
The experience in successive dispute curtilage base building tears open change case to put in 3 difficulty normally in cognizance:
(one) how does the interest tearing open change of foreign staff allocate
The policy tearing open change with current Shanghai is calculated above all normally the fund of the compensation that tear open change of farmer of the change that be torn open, give farmer the favourable target that buy a house again next, by farmer the choice buys a house. Floor area having card is fund of the compensation that tear open change and the basis of important business accounting of the favourable index that buy a house, it is a basis normally earning of computation of this cognizance population. But Shanghai part area dismantles change policy applicable tall not low principle, actual room roofing is accumulated and compare according to photograph of population calculative area namely, choice area is larger person the computational basis that buys room index as fund of the compensation that tear open change and privilege. Be like case one in, because come,husband Wu Mou ties foreign staff, this farmer obtains the fund of the compensation that tear open change of 5.61 square metre and privilege to buy room index more. In tearing open change increase to allocate, to coming husband substandard comes personnel is the benefit tearing open change that can enjoy much cent only or as average as the other population that tear open change branch match existence difference.
(2) how should the interest tearing open change with much privilege allocate
Policy of a few Hui Min privilege are included in the policy that tear open change, be like case 2 in, big and single young person waits to be able to press much person computation when maintaining the population that tear open change, this farmer because this is additional obtain a part to tear open change to compensate paragraph and privilege to buy room index, but personnel is stated to share in tearing open change increase to put in the agreement that tear open change 's charge accordingly, still put in special status personnel 's charge particular presence is larger controversy.
(3) break up how is after building a house, successive bequest limits maintained
Heir breaks up build curtilage base building and the relevant and successive dispute of generation includes a variety of state. Be like case 3 in, because do sth without authorization of one party heir breaks up,the building accedes formerly after building already " destroy break " , other successor can accede to limits is former building area or turn over the building area after building to be put in different understanding.
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The experience in successive dispute curtilage base building
Tear open the general train of thought of change case and method
The experience in successive dispute curtilage the cognizance key that base building tears open change case and difficulty depend on analyse producing a part, need to define the population tearing open change of building of the change that be torn open above all; Be in by heir certainly next curtilage the building property right on base and portion, enjoy by the population that tear open change curtilage the compensation tearing open change of base, person of building property right enjoys compensation of the building on the ground; Distribute the other benefit that tear open change according to the specific policy that tear open change finally, affirmatory by the bequest limits of heir.
(one) the cognizance of the population that tear open change
According to " Shanghai collects collective land building to amend provisional provision " , curtilage the interest tearing open change of base land part should vest in tears open change population. The population that tear open change is commonly curtilage base access person, be listed on watch of base use examine and verify curtilage namely door in member. As farmer family lives on base curtilage espouse of funeral of member happening marriage and parturient etc fluctuant, curtilage base access the person also changes subsequently.
Shanghai had large-scale country 1991 curtilage base access is registered, but do not have again after this oneself unified curtilage base is registered. Nowadays is not had curtilage base access of the person replace the news that register, curtilage the law related base access and administrative regulations also are not perfected. The cognizance of the concrete unit that tear open change should serve as the important reference of the affirmatory population that tear open change, answer to maintain the population that tear open change in order to tear open change policy and detailed list of population of the unit that tear open change. The court ought to ask party offers the relevant agreement that tear open change, when be like party to cannot be offerred or needing authenticity of test and verify, can head for place to tear open change branch attune to take file agreement. Be like case one in, dismantle change policy according to place, although Wu Mou is foreign staff but its are maintained to be one of population that tear open change, should allocate on average with the other population that tear open change curtilage the interest tearing open change of base part.
(2) curtilage the cognizance of base building property right and portion
Curtilage the taking of base building property right has 3 kinds of kind commonly: It is farmer classics after examining and approve initiative build obtain, 2 be obtain through acceding, 3 be build through breaking up obtain. The cognizance method of building property right and portion allocation means are as follows respectively:
1, through initiative build those who acquire building property right to maintain method and portion allocation pattern
As a result of our country curtilage base system has welfare quality, the purpose is to ensure collective economy to organize a member to live to be resided somewhat. The building is initiative build watch of examine and verify to go up stand base personnel all is curtilage person of base building property right. But in break up to analyse is produced or accede dispute must differentiate when portion of building property right, need to consider the relevant and contributive case that the building makes, contributive contribution is much person should distribute share of building property right more. Party of need of relevant and contributive situation is offerred buy the evidence such as receipt of group of construction of building materials, employ, bill to try to prove. Party cannot be offerred but need to examine relevant data, should manage an attune to take registration form of examine and verify or building property right to register a record to wait to land of local villages and towns. If contributive problem is built to be reached hard to the building between party consistent, and all fail to offer significant evidence to prove oneself is contributive of the view, the member that the court can grow up inside the farmer when will building a house regards a building as to make contributive person.
2, the cognizance method that acquires building property right through acceding and portion allocation means
Clear to producing evidence, have the house that makes list of examine and verify, successive acquire building property right ought to according to inheritance act relevant provision distributes share of building property right. Premature to making time and not relevant the ancestral house that builds formalities, already all registered afresh commonly 1991. Should register effectiveness to enclothe the effectiveness that registers like the history such as land reform card, the property right portion of this kind of ancestral building allocates reason should with 1991 curtilage base is registered to allow.
3, build those who acquire building property right to maintain method and portion allocation pattern through breaking up
Break up building a house is to point to classics after examining and approve, in original building is demolished to build new building afresh on base curtilage. In trying experience building to turn over the successive case that build, need to examine 3 element mainly: It is the building reverses the living condition before building, if each square party opinion is differ, but to local village appoint the circumstance can live related check; 2 it is the building turns over the contributive case that build, need by break up build a person to offer relevant break up establish charge credential; 3 it is to break up build whether to ask for otherly heir agrees, individual heir turns over those who build a house to need to offer relevant evidence to prove to already was asked for otherly heir agrees. Turn over the successive dispute that builds building generation to basically have about individual heir the following 4 kinds of case:
It is the house before life be accedinged do not have inside housing house be the same as heir, heir of the one party after dying breaks up build a house. The state before turning over the property right that builds a house newly to should continue returns all heir to be shared by the portion, but what other successor should propose a person to breaking up is contributive give compensation. Although other successor know the inside story and did not object breaking up build, also cannot maintain its to abandon successive building property right.
2 it is the house before life be accedinged have inside housing house be the same as heir, heir lives to break up together after dying build a house. This kinds of case is belonged to be the same as heir to regard as curtilage base access the person is reasonable improve oneself living condition, other successor is not enjoyed turn over the share that builds a house newly, but break up build a person to ought to compensate other successor the portion in former building. Be like case 3 in, huang Yi turns over the many area after building a house not to belong to bequest limits, yellow third is not enjoyed turn over the share that builds a house newly.
3 be before be being died by heir, one party heir is contributive break up build a house but make over written agreement without the building. Break up newly build a building to ought to serve as be handled by the bequest of heir, press a portion to share by each heir. To contributive turn over the heir that builds a house when distributing share of building property right, perhaps can ask other successor offers proper compensation many minutes appropriately.
4 be before be being died by heir, one party heir is contributive break up build a house and the building makes over written agreement. If make over an agreement effective, break up build a person to build a building to enjoy full property right to breaking up newly; If break up build person and same economy organizes a member or be obtained additionally already to approve by heir blame curtilage base, should make over an agreement to disable, turn over the processing that builds a house newly means and without written the situation that makes over an agreement is same.
(3) allocate curtilage the interest tearing open change of base building
Allocating need when the interest tearing open change of base building curtilage will curtilage the living safeguard function of base serves as principal think element. Court should to party or local village appoint meeting investigation is clear that before base building tears open change, experience case is mixed curtilage current live actually circumstance. Shanghai farmer income tears open change increase to be able to be divided commonly for curtilage accessary establishment demolishs interest of base access compensation, building compensation interest and interest of the other compensation that tear open change, allocate regulation to be as follows:
1, curtilage the allocation of interest of base access compensation
(1) the allocation of the favourable index that buy a house
Tear open change unit is divided outside paying farmer of the change that be torn open to tear open change to compensate a paragraph, the privilege that still can assign particular area buys room index. Privilege buys room index to answer first consideration curtilage base access person, still can obtain in order to ensure its after living building is collected live with the room.
It is the house before life be accedinged have inside housing house be the same as heir, after be being died by heir, this building tears open change. Because tear open access of base of the Shang Youzhai inside change building person, be not use to the person must not enjoy partial building property right according to oneself and ask to achieve the favourable target that buy a house.
2 it is the house before life be accedinged do not have inside housing house be the same as heir, after be being died by heir, this building tears open change. Although tear open change,already did not have inside the building curtilage base access person, but the favourable target buying a house that in practice the unit that tear open change can give particular area commonly tears open change compensation as the building, the heir of the building that tear open change can occupy portion of building property right to allocate quota according to place.
3 it is the house before life be accedinged have inside housing house be the same as heir, be died before consign of the building after the agreement that tear open change is signed by heir. Should be not torn open only change unit calls in, the favourable index buying a house that has not use still can serve as be made allocate by heir bequest.
4 be when be being signed to tear open change agreement before one's death by heir, make over oneself favourable index that buy a house heir. Buy room index or be bought by the former privilege of heir the building cannot be handled as bequest, the court can verify relevant condition to the unit that tear open change.
(2) curtilage compensatory of base access money allocates
Shanghai tears open change policy to be opposite curtilage the means of monetary compensation computation of base access basically has " several bricks " and " several poll " two kinds, among them " several bricks " occupy taller. "Several bricks " become new price to tear open change building replacement commonly, build commodity housing with area the land access base price of floor area of every square metre and price allowance 3 person the sum is multiplied in order to have card floor area. Tear open change building replacement to tie the compensation that demolishs to building itself into new price among them, should person of property right of vest in building. Build commodity housing with area the land access base price of floor area of every square metre and price allowance, should by curtilage the person enjoys base access on average. "Several poll " it is a basis commonly census register population will calculate compensation amount, should by curtilage the person presses base access the portion is mutual.
(3) the allocation of the favourable interest that tear open change
Basis Shanghai dismantles plan of change benefit civil administration, curtilage the singleton of base access philtrum is big and female, maiden the special status personnel such as the youth, the meeting is normally additional calculate the population that tear open change bring about this door to tear open change increase to increase more, if consider,knot legitimate child needs more housing to ask after big and single young person. These interests that tear open change are based on special status to just give, funds of these the additional compensation that tear open change and privilege buy reason room index due to is special identity personnel, should not be in each curtilage base access is made the same score between the person all allocate. Be like case 2 in, big and single young person is fastened because of square second when this door is tearing open change and additional the obtained interest that tear open change should vest in him Fang Yi.
2, accessary establishment demolishs the building the allocation that compensates a benefit
Accessary establishment includes the building canopy is abandoned, the building that do not have card. The building is accessary the demolishs compensation to expect to make thing only compensation of establishment, due to makes a person actually. Those who need an attention is, build a person actually to although,still should include not contributive but still live in the building and enjoy curtilage the personnel of base access. Demolishing compensation to what the building decorates is the compensation to decorating stock, should vest in is actual and contributive decorate a person. If not have,decorate contributive proof effectively, should maintain what live inside the farmer when decorating to already economic income personnel is actual and contributive decorate a person.
3, the allocation of interest of the other compensation that tear open change
Outside eliminating afore-mentioned benefits that tear open change, farmer of the change that be torn open still can get such as moves accessorial cost, temporarily ferry charge, fast autograph fast move allowance of cost, special target, plot of land for personal needs to compensate the benefit of the other compensation that tear open change such as charge. The policy that tear open change and all meet commonly in the agreement that tear open change distribute program clearly according to cost quality: If move accessorial cost, temporarily ferry charge, fast autograph fast moving cost to wait is to encourage live actually the person removes as early as possible, move for its and transfer period inside live offer corresponding fare, reason should vest in house lives actually person; Special target allowance belongs to the special allowance of the member that opposite strands difficult alive, should put in its individual 's charge all; Member of rural collective economy is collective to returning the right that all plot of land for personal needs and farmland enjoy production to use, because this plot of land for personal needs compensates charge,answer personnel of census register of the agriculture inside vest in farmer.
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About successive relevant specification
Separate out by the interest tearing open change of heir hind, can break up according to the means with legal and successive or successive will by heir belongings. In the will in acceding, answer to allocate according to effective will content by the belongings of heir. Be in legal and successive in if be existed by heir many children, still need careful to check by the provide for fact of heir, assume the children of main support obligation to answer proper much cent.
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