双拆语境下的违法建筑补偿——以法律关系为视角

拆违与拆迁并举的模式在《国有土地上房屋征收与补偿条例》实施后势将更加普遍采用。从法律关系的角度看，违法建筑的拆除属外部行政法律关系，征收拆迁中的补偿则为民事法律关系。《条例》所指不予补偿的违法建筑应界定为经过“调查、认定与处理”后，仍必须适用“拆除”决定的违法建筑，而作为民事法律关系的拆迁补偿只在违法建筑涉及国有土地使用权时，方能以排除妨害的形式要求自行拆除或强制拆除。

On the Compensation for Illegal Building Demolition:from the Perspective of Legal Relationship

With the implementation of the Regulation on the Expropriation of Buildings on State-owned Land and Compensation, more and more illegal buildings would be dismantled during the housing demolition procedure. However, from the perspective of the legal relationship, the dismantling of illegal building is external administrative legal relation, which should not include any compensation. On the other side, the compensation for housing demolition is kind of civil legal relations. In this context, the illegal buildings regulated in the Regulation which is without compensation should be defined carefully. In this article, the author insists that only the ones which have been finally applied to dismantle are the illegal buildings mentioned in the Regulation. If only from the civil legal relation, then only when the illegal building infringes the state-owned land use right, can the state claim eliminate the obstruction