What is the main problem that villagers are unwilling to change sheds?

(A) the formulation of the overall urban planning

According to the Urban Planning Law of People's Republic of China (PRC) and relevant laws and regulations, major issues concerning the overall layout and development planning of the city can only be implemented after being approved by the state power organ, namely the National People's Congress and its Standing Committee.

(2) Transfer of land use rights

The land use right of shanty towns is diverse and complex, which can be obtained by allocation or transfer. According to the national land management regulations, in addition to the allocation of land use rights, other state-owned land use rights should be obtained through bidding, auction and listing; The right to use collective land must be expropriated and requisitioned by the state before it can be transformed into modifiable and implementable land.

(three) the signing of the demolition compensation contract

The demolition compensation contract involves the determination of the subject, the demolition time, the compensation standard, the payment of the price, the demolition period, the handling of objections and the settlement of disputes. Therefore, the negotiation and signing of the demolition compensation contract is an unavoidable serious problem in the transformation of shanty towns.

(four) the exercise of administrative licensing rights and administrative adjudication rights by administrative organs.

According to the Regulations on the Administration of Urban House Demolition and the Regulations on Administrative Adjudication of Urban House Demolition, the demolisher in urban house demolition shall obtain the permit for house demolition before carrying out the demolition. If the parties to the demolition fail to reach a compensation agreement, the administrative organ shall make a ruling. Therefore, whether the permit caused by the demolition is legal, whether the compensation standard is just and reasonable, and whether a hearing should be held has become the focus of controversy. Therefore, it is particularly important for the implementation of the transformation whether the administrative actions of the administrative organs in the transformation of shanty towns are legal and whether the exercise of power conforms to legal procedures.

(5) signing, supervision and management of construction contracts

After the foundation demolition work is completed, the developer or construction unit carrying out the reconstruction task needs to choose a qualified and powerful construction unit to ensure the control of quality, progress and cost, which will naturally involve the signing of the general contract, the signing of the subcontract, the procurement of materials, the signing of the survey and design contract and the determination of the engineering consulting service contract. All these matters related to the project play a decisive role in whether the reconstruction work can meet the requirements and be completed on schedule, and whether the living environment of the relocated households is good or bad and their legitimate rights and interests can be protected.

(6) Bidding process

According to the Bidding Law of People's Republic of China (PRC), Measures for Bidding of Construction Projects and Standard Provisions on Bidding Scope and Scale of Construction Projects, the land acquisition, design and construction of shantytown renovation projects should be carried out through legal bidding procedures, that is, the client should select the project design unit, construction unit and management unit to carry out the project construction through bidding announcement, so as to ensure the maximum openness and fairness of the whole renovation project. Customers include: government departments, developers, construction units and other management departments. Besides signing the bidding contract, the extension of the bidding procedure also involves a series of legal related issues, such as the organization design of the bidding documents, the preparation of the bidding documents, the determination of the guarantee unit and the bank guarantee, and the opening of the same account.

(7) Other relevant legal issues.

1. Under the condition that the government is the main body of direct development, the legal relations between the principal and the trustee, and between the trustee and the construction unit arising from the agent construction are generated by the way of "engineering agent construction".

2. When the residents in the transformation area have the corresponding conditions, the shanty towns will be transformed by means of fund-raising cooperation, involving the signing of cooperation agreements between residents, the signing of entrustment agreements between investors and developers, and the preparation of construction contracts between developers and construction units.

3. After the shantytown renovation is completed, management and service should be one of the necessary tasks to consolidate the renovation results, which involves the selection of property management units, the signing and performance of service contracts, the determination of public utility contracts and the subsequent guarantee service contracts.

Three, the main legal and policy basis for shantytown renovation

(1) Constitution

Article 13 of our Constitution stipulates: "Citizens' lawful private property is inviolable. The state protects citizens' private property rights and inheritance rights according to law. In order to meet the needs of public interests, the state may, in accordance with the law, expropriate or requisition citizens' private property and compensate them. "

(2) Property law

China's property law came into effect on June 65438+ 10/day, 2007. The promulgation and implementation of this civil basic law, which regulates the civil relations arising from the ownership and use right of things, will play an important role in maintaining the basic economic system of the country, maintaining the socialist market economic order, clarifying the ownership of things, giving full play to the effectiveness of things and protecting the property rights of obligees. Property Law is the main legal basis for the ownership of land and houses involved in shantytown renovation and its changes. Other laws, regulations and policies shall be formulated and implemented in accordance with the Property Law. Article 76 of the Property Law stipulates: "'The following matters shall be decided by the owners * * *: ……… (6) Rebuilding and rebuilding buildings and their ancillary facilities; It should be approved by the owners whose exclusive parts account for more than two-thirds of the total construction area and more than two-thirds of the total number of people. Article 42 stipulates: "In order to meet the needs of public interests, land owned by collectives, houses of units and individuals and other immovable property may be expropriated in accordance with the authority and procedures prescribed by law." As for "public interest", there is no clear provision in law, so it is difficult to grasp it in practice.

(3) Administrative law

Administrative laws related to shantytown renovation mainly include: urban planning law, land management law, urban real estate management law, People's Republic of China (PRC) bidding law, etc.

(4) Administrative regulations and rules

The administrative regulations and rules related to shantytown renovation mainly include: Regulations on the Management of Urban House Demolition (to be revised), Several Opinions of the State Council on Solving the Housing Difficulties of Urban Low-income Families (Guo Fa [2007] No.24) and Several Opinions of General Office of the State Council on Promoting the Healthy Development of the Real Estate Market (Guo Ban Fa [2008]131No.

(five) local regulations, rules and normative documents

The local laws and normative documents related to shantytown renovation mainly include: Opinions of Shanxi Provincial People's Government on Implementing the shantytown renovation of state-owned key coal mines (J [2006] No.8), Guiding Opinions of Shanxi Provincial People's Government on Implementing the shantytown renovation of urban residents (for Trial Implementation) and Notice of Shanxi Provincial Construction Department on Strictly Controlling the Construction Standards of Housing Units in shantytown renovation (J.Z. [2006] No.434). Taiyuan Municipal People's Government's Implementation Opinions on the Renovation of Urban Residents' Shantytowns (and Fa [2007] No.23) and Taiyuan Planning Bureau's Special Plan for the Renovation of Urban Residents' Shantytowns,

Four, the main parties involved in the transformation of shanty towns and their legal relations.

(A) the legal relationship involved in the transformation of shanty towns

According to the actual situation of shantytown renovation, the main bodies involved are relocated households, developers and the government. In addition, there are demolition executors, government departments, social intermediaries and so on. Relocated households mainly refer to residents living in shanty towns, housing lessees, enterprises and institutions, and farmers living in "villages in the city". There are not many such subjects, and they are not complicated. A developer refers to a development unit with real estate development qualification, development ability, ability to provide demolition and resettlement houses, and project reconstruction at the demolition address. It mainly exists in the form of real estate development companies, including other engineering construction units with building qualifications. The special position and role of the government in the transformation of shanty towns determines its specific responsibilities and identity attributes in the transformation. In addition to the macro-level legal policy formulation and resource allocation, the micro-level guidance and coordination function of the government can not be ignored.

Because there are many subjects involved in shantytown renovation, the legal relationship is relatively complicated. These include: the legal relationship between administrative guidance and administrative coercion exercised by the government based on the provisions of laws and regulations, the legal relationship between developers and the government in the distribution and transfer of land use rights, the legal relationship between developers and demolition compensation, and the legal relationship between developers and those who implement demolition. Among all the legal relations involved in shantytown renovation, the legal relations of land use right transfer, transfer and demolition compensation should play a leading or decisive role.

(B) the legal relationship involved in the transformation of shanty towns

1. Legal relationship between assignment and transfer of land use right

Because most of the plots identified as shanty towns are relatively backward areas in economic development, and due to historical reasons, the situation is more complicated. According to the current land management legal system, the land involved in shantytown renovation is generally recovered by the government land storage center, and then allocated or auctioned publicly. The present situation of land use right in shanty towns is: land use right with land use certificate, land use right without legal origin certificate, land use right without any formal procedures, and the original collective land use right of farmers who have become urban residents due to the transformation of old cities. Therefore, the relationship of land use rights involved is very complicated, and straightening out all kinds of relationships is the basic guarantee to ensure the normal transformation of shanty towns. But a general premise is that the land use right must be legalized or marketized through legal procedures before it can enter the scope of shantytown transformation.

2. Legal relationship of demolition compensation

Demolition in urban reconstruction has always been a major obstacle to the urbanization process. Because on the one hand, it is the need of social and economic development and the maintenance of public interests, on the other hand, it is the basic living needs and protection of residents. Many shantytown renovation projects are difficult to carry out smoothly and run aground halfway, largely because the demolition work has not achieved the expected purpose. Due to the imperfection of the law or the low level of law enforcement, both sides failed to abide by the law in the demolition, and brutal demolition and violent resistance to the law occurred from time to time; When monetary compensation, property rights exchange and other demolition methods are carried out, the two sides can't reach an agreement or have different understandings of the agreed terms in the contract, which leads to endless disputes, which has caused great damage and obstacles to the implementation of the overall urban planning, social stability and economic development.

Five, put forward suggestions for the government to deal with practical problems in shantytown renovation.

(A) properly handle the relationship between the demolished and the government

The demolished people don't understand the government's demolition project and think that the government serves the developers, and the developers use the government's "popular project" as a "shield". For this incomprehension of the demolished people, the lawyer suggested that all aspects of shantytown renovation should be "sunny" in order to really do a good job. In the preparatory stage of the transformation, it is necessary to fully investigate and demonstrate, listen to the suggestions of the demolished, let the demolished elect their own representatives, and hold a hearing when necessary, so that the government (the demolished) and the demolished can reach a basic unified understanding, form mutual propaganda among the demolished, convince the demolished, and form unity in action, which is conducive to the smooth development of the later work.

(two) to correct the one-sided understanding of the demolition in a timely manner.

People who have been demolished often take out a part of the legal system or cover it up for their own benefit, overemphasize their rights and ignore their obligations, that is, the people who have been demolished only talk about the property law, forming antagonistic feelings. In fact, the rights and obligations of the government and the people being demolished are unified, and the goals are exactly the same. As a government, we should increase the publicity of laws and regulations related to shantytown renovation, and don't favor one over the other. Lawyers believe that the transformation of shanty towns involves a wide range, covering administrative law, civil law and other fields, but its "administrative attribute" is stronger, which requires the government to give full play to its administrative efficiency and take reasonable and legal measures to truly win the trust of the people and control the overall situation of shantytown transformation, so as to make it a "moral and political project" of the government.

(C) correctly handle the relationship between the government and developers

The relationship between the government and the developer is "confusing", and the demolition person and the developer are two legal subjects. In practice, the relationship between the government and the developers is often vague, which leads to misunderstanding among the demolished people. Some improper behaviors of developers make the government "pay the bill" and let the government take the blame. The workers who worked hard in shantytown renovation have lost their reputation. Our government should standardize the rights and obligations of all links, clarify responsibilities, and avoid misunderstandings, which will affect the smooth progress of the project.

(four) the demolition method should adhere to the principle of combining principle with flexibility.

The developer intervened prematurely, which led to offside. In the "game" of interests, the demolished people feel "weak" and form opposing emotions. The situation of the demolished people involved in shantytown renovation is complex and diverse, including collectives, individuals, illegal buildings and temporary buildings. It is impossible to make a "one size fits all" demolition plan, and the principle and flexibility should be unified. For example, "warm demolition" can be used for reference.

(5) Suggestions on the implementation of the demolition policy.

To build a "total quality control" system for shantytown renovation, the government should control and supervise the target from the aspects of quality, safety, cost, profit and harmony index, formulate relevant evaluation methods, plug loopholes, and truly implement the government's shantytown renovation policy.

Sixth, the significance of lawyers' participation in shantytown renovation.

The government should have lawyers in the whole process of shantytown renovation. Including drafting, formulation, relocation, relocation and so on. Set up an office of "shantytown renovation and lawyer consulting service", accept public consultation, answer questions from the masses, participate in lawyer witness and help draft contracts. To build a bridge of rule of law for shantytown renovation.

1. Lawyer is a Socialism with Chinese characteristics lawyer with professional knowledge in law, who can participate in the government's planning, drafting and formulation in the early stage of shantytown renovation to avoid legal risks.

2. Lawyers participate and lead the government's moral and political projects and popular support projects; Holding thousands of people in one hand. Legal publicity can be strengthened, so that residents can understand the law and express their reasonable demands rationally. People often say: Ignorant people are fearless, because they don't understand the law, which causes opposition from individual residents and takes some irrational and excessive actions; Form a passive situation of wishful thinking.

3. The participation of lawyers can make residents feel that they have a backbone. With "caring people", their legitimate rights and interests can be effectively safeguarded. Lawyers go deep into the people and let them feel the warmth of the rule of law, which is conducive to the smooth progress of the project.

4. With the participation of lawyers, we can know the residents' demands in time, communicate with the government and communicate with each other, and resolve some contradictions in the bud, so as to reassure the government and satisfy the people.

5. The participation of lawyers can give full play to their professional wisdom, so that intractable personality problems and special contradictions can be solved smoothly; For example: small property houses, existing mortgages, public houses and so on.

6. The participation of lawyers can help people solve other civil disputes caused by the demolition process, such as the division of children's property and the determination of property rights, so that the exposed problems can be found and dealt with in time.

7. The participation of lawyers will help the people to guide, support and check the selection and signing of contracts, prevent hidden dangers and improve work efficiency.

8. The participation of lawyers is conducive to the later work and the sustainable development of community governance.

In short, the transformation of shanty towns has really built a bridge of the rule of law and demonstrated the power of the rule of law. It is our lawyer's unshirkable social responsibility to participate in shantytown renovation. We have the obligation and ability to make shantytown renovation truly become the government's moral and political project, popular project and social harmony project.