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对财产征收的研究见证了日益增多的私法与公法的互动。学界和实践界争论的焦点往往集中在对征收的补偿。《欧洲人权公约第一议定书第一条》常常被引用作保护财产权的依据,然而征收补偿并没有在第一议定书第一条中特别注明。许多学者的探讨和欧洲人权法院的判决倾向于支持市场价值是最好的公平补偿主张。[2]但这种采用“市场”方法来研究财产征收也被一些学者批评为没有考虑“财产的公民性”和“社会责任”。本文在法经济社会学理论的框架下,从社群的视角探讨市场的方法,社会的方法和人权保护的方法分析财产征收的局限性,并提出从社群的角度出发,强调互惠性的征收补偿。这也有助于促进私法与公法在财产征收方面的有效互动。
Research on the expropriation of property has witnessed the growing interaction between private law and public law. The focus of controversy in academia and practice tends to focus on compensation for expropriation. Article 1 of Protocol I to the European Convention on Human Rights is often cited as the basis for protecting property rights, however, the expropriation of compensation is not specifically stated in Article 1 of Protocol I. The discussions of many scholars and the judgment of the European Court of Human Rights tend to favor market values as the best fair compensation claim. However, this method of using “market” to study the collection of property has also been criticized by some scholars for not considering “citizenship of property” and “social responsibility.” Under the framework of the socio-economic law theory, this paper discusses the market method, social method and human rights protection method to analyze the limitation of property collection from the perspective of the community. It also proposes to emphasize the collection of reciprocity from the perspective of the community. make up. It also helps to promote the effective interaction of private and public law in the collection of property.