Can the fetus get compensation during the land acquisition?

With the continuous improvement of the protection of land acquisition and resettlement compensation policies to the protection of the rights and interests of the requisition, whether the unborn fetus can get compensation for collection resettlement is worthy of our attention.This article sort out relevant knowledge points from the aspects of relevant laws and regulations, the rules of judicial referees, and related academic opinions for readers for reference.

Rules

1. When collecting collective land, you should fully consider the special circumstances of the fetus and list the fetus as the resettlement object to compensate — Li Mouxuan, Yang Mouyi, Tang Mouhan, and Liu Mouxi.

[Referee’s purpose] The legitimate rights and interests of the fetus should be guaranteed.(Originally) Article 16 of the "General Principles of the People’s Republic of China" clearly clearly stipulates that the scope of the protection of fetal interests is "the protection of fetal interests such as inheritance and receiving gifts."In judicial practice, it is necessary to determine whether it is the scope of the protection of fetal rights and interests in combination with specific circumstances.The protection of fetal equity should be implemented and implemented during collective land acquisition.Because my country implements the responsibility system for the family coalition production contract, in accordance with the legislative purpose and spirit and relevant policies of the "Rural Land Contract Law", land is the basic living materials and living security of the villagers. The village’s land contracting rights and land compensation distribution rights are used as their basic living materials and living security.Land compensation fee is a compensation for the loss of ownership of rural collective land, and it has the function of ensuring the basic life of collective economic organizations.The distribution of land compensation fees is based on the status of members of the collective economic organization.When collecting collective land, the fetus should be listed as a resettlement object for compensation.Especially for collecting all collective land for collective economic organizations, when resettlement subsidies are performed, the original living standards of land acquisition farmers must not be reduced, long -term livelihood is guaranteed, and special circumstances of the fetus must be fully considered to give special guarantees.

Trial court: Supreme People’s Court

Case number: (2018) Supreme Law Shen Shen 7016, 7017, 7019, 7021

Source: China Magistrate Document Network

Release date 2019-03-04

2. When collecting collective land, the fetus should be reserved as a member of the collective economic organization -Han Moumou sued a villager group for land acquisition and resettlement compensation case

[Referee’s purpose] The legitimate rights and interests of the fetus should be guaranteed. Rural collective economic organizations can hold villagers’ meetings to vote on how to allocate compensation for land acquisition through democracy, but they must not violate national laws and regulations.The voting results of the villagers’ meetings shall not deprive the fetus’s legitimacy and legitimate rights and interests.In view of the basic rights and interests of collective land acquisition compensation and distribution rights, it has an important guarantee for the survival and development of members of collective economic organizations.The distribution of land compensation fees is based on the status of members of the collective economic organization.When collecting collective land, the fetus should be reserved as a collective economic organization.

Trial Court: The People’s Court of Liuyang City, Hunan Province

Case number: (2021) Xiang 0181 Minchu 8137 No. 8137

Source: "Hunan High Court" WeChat public account, "Chinese Court of 2022 (Case of Land Dispute)"

3. In the implementation of the land acquisition department, appropriate considerations or reserving some rights and interests for the fetal that have not been born or reserved for the discrepancy objects should be supported.The administrative promise of the People’s Government of Huanghua Town, Changsha County

[The purpose of the referee] According to relevant laws and regulations, the object of land acquisition is a member of the rural collective economic organizations of land, and the "unborn fetus" does not belong to the "object that must be resettled."However, from the perspective of human care, the land acquisition department shall be supported or reserved for the discipline of the discrepancies in the process of implementation from the perspective of human care, and it shall not be supported by the prohibition of the law without violation of the law of law.

Trial court: Hunan Provincial High People’s Court

Case number: (2015) Xiang Gao Law Xingxing No. 70

Source: China Magistrate Document Network

Release date 2015-06-23

Academic point of view

1. Protection of fetal interests.Article 16 of the Civil Code specifies the scope of the protection of fetal interests as "the protection of fetal interests such as inheritance of inheritance and receiving gifts."In these circumstances, the fetus is deemed to have civil rights.The "inheritance inheritance" here includes not only legal inheritance, but also will inherit and be inherited.The fetus is the legal heir, and obtains the corresponding heritage share according to the legal inheritance; if there is a will, the fetus will be determined by the will inherit the will according to the will.The fetus is not a legal heir. The heir can also give a will to give the personal property to the fetus. In the future, the fetus will be given by the premium."Accepting Gift" means that the gift can give the property to the fetus. At this time, the fetus is regarded as a civil rights capacity and enjoys the right to accept gifts.In addition to inheritance and receiving gifts, there are other conditions involving fetal interests in practice. Therefore, this article uses a "equal" word, which is not limited to within the scope of inheritance. In principle, other circumstances that need to protect the interests of the fetus.

Editor -in -chief of Shi Hong: "The Code of the People’s Republic of China> Interpretation and Application · General Principles", published in August 2020 of the People’s Court Press, p. 34.

2. The identification of compensation benefits of fetal motion demolition.With the rapid development of the economy and the continuous changes in urban structures, disputes caused by demolition have shown a trend in my country year by year.However, due to the differences in demolition policies in various places, it is difficult for the law to clearly specify the issue of fetal rights in the demolition.The author believes that in civil activities, the principle of autonomy of the parties should be followed.In summary, the compensation benefit of the motion demolition is an important guarantee for the right to survive the demolition person. If the demolition agreement stipulates that the fetus can enjoy the compensation benefits of demolition, the interests of compensation for demolition and the General Principles of the Civil Law (Note: Now the Civil Code No. 1Article 16) The inheritance and gifts stipulated in Article 16 are homogeneous. Some civil rights of the fetus should not be limited to the field of inheritance and gifts, but should appropriately expand its extension on the basis of conducive to the protection of fetal rights.

Editor -in -chief of Huang Xiangqing: "Selected Cases of the First Intermediate People’s Court of Shanghai in 2019", published in May 2020, published by the People’s Court, p. 168.

Case Jun Supplement

As mentioned above, in the process of land acquisition, the fetus enjoys the right to land for land acquisition or demolition and resettlement.However, it should be noted that in specific judicial practice, it is necessary to comprehensively determine the specific situation of the case.

For example, it is necessary to consider whether the fetal parents have membership of the collective economic organization. The mother’s pregnancy time is before or after the announcement of the relocation announcement.For another example, if the local people’s governments make clearly stipulate the determination of the personnel, the compensation method, the compensation standards, and the resettlement standards of the resettlement conditions, the resettlement object, the compensation standards, and the resettlement standards in accordance with the collection decision made by the compensation procedure of the house collectionWhether the unborn fetus falls into the scope of resettlement objects.

Legal basis

Article 16 of the "People’s Republic of China" [Special Protection of Fetail Interests] involving the protection of fetal interests such as inheritance and receiving gifts, and the fetus is deemed to have civil rights.However, the fetus is dead during delivery, and its civil rights capacity does not exist from the beginning.

Article 1,55 [Fetal reserved share] When dividing the inheritance, the inheritance of the fetus shall be retained.The fetus is dead during delivery.

Transfer: Research on Administrative Law

Edit: Fu Dehui

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