The Holdout Problem And Its Governance Of Land And Housing Exrpropriation

Based on the combination and coexisting fact of violence and parvenu in China’s land and housing expropriation, taking the holdout problem as the starting point for theoretical logic, this research included the social risk in the framework of the analysis, introduced the methods of multi case analysis, game analysis, empirical analysis and combined with the international theory and experience for references and lessons to explore the realization method and action framework of the coordination between the expropriation system and social development, as well as the risk management. The main research contents and conclusions are as follows:(1) This paper have defined the connotation of the holdout problem. In China, the holdout problem occurred mainly in the land and housing expropriation process, reflecting a unique monopoly power of the subject being expropriated, and accordingly chase excessive compensation or to pursue its achievement of their other claimed rights and interests. The so-called unique monopoly power is that even subject with the smallest share of expropriation has the ability to block The collection of projects carried out. Specifically, holdout behavior refers to the known as the fighting behavior from the subject being expropriated due to expropriation, showing diverse demands. It is also a blatant resistance behavior against public power, which always resulted in making expropriation can not be completed on schedule. Holdout can refer to a specific protests, specific entities or specific events; also can refer to a metonym of these protests and the description of these events;as well as a generalization of the social problem related to land and housing expropriation.(2) This paper have made description on the factors and statistical characteristics about the holdout incidents during over the past ten years. An overview of fifty typical holdout incidents throughout more than a decade, we can find that the holdout problem show an overall trend of medialization and the holdout behavior is led by the Instrumental orientated appealing caused by interests damages.(3) Through observation and analysis, we found the institutional causes of the holdout problem mainly existed in expansion of eminent domain functions and the ambiguity of the nature states of eminent domain. The expansion of eminent domain is mainly manifested by the phenomenon that using public power to realize private interests and the ambiguity of the nature states of eminent domain is mainly manifested the phenomenon that using private methods to realize public interests.(4) Through portraying the behavior mechanism of holdouts, we further verified the motivation and possibility of every subject being expropriated being the holdout when expropriation goes near enough to market transactions in theory. The smaller the expropriation share they take, the more likely they may ask too high a price, the more dispersed the land being expropriated or the more quantity of the subjects being expropriated, the more likely to delay the project completion and the cost of efficiency is bigger also. Potential threats from the holdouts will limit the best development scale of the project.(5) The way to solve the problem of China’s holdout problem is to ease current eminent domain functions, achieve a clear nature state of eminent domain:"non business but public interests in land acquisition and integration belongs to eminent domain "non public interest business land acquisition and integration belongs to the market. "Business public interest land" has both business and public attributes and it need both market and government functions to achieve effective allocation. So this paper set up the "national buy" this new land assembly mechanism, to try the "business public interest land" acquisition.(6) In the process of public interest land expropriation, we must be sure to regulate eminent domain, strengthen the public nature of eminent domain and reshape the true appearance of eminent domain, thus to the form a respect for eminent domain from the whole society and avoid the holdout problems in expropriation process. To develop a directories of expropriation will be helpful to strictly limit the expropriation in the "non business public interest"; in legal expropriation, we must adhere to its mandatory nature, while introducing the court as an independent third party from local government and the subject being expropriated to expropriation procedure to play a more effective in ending disputes; taking the "the loss to the owner" as a fair compensation standard, and taking the collective construction land market prices as a measure of the "the loss to the owner".(7) Allowing the business land directly being transacted in the market means to use market mechanism for land development and consolidation, which will encounter resists from those holdouts inevitably. Just as what the experience of the United States declares, developers’ "secret buying agents" may also be accompanied by in China. With functions easing of eminent domain, through the introduction of interest sharing mechanism and the rule of law, to constraint those holdout behaviors that are not conducive to the socially optimal and explore the construction of high efficient market integration pattern of land development both considering individual and social interests.(8) Compared to the innovation experience and thought of property rights structure and governance, such as the US’s CAI, BID and Michael Heller’s LAD, we do not have to sell ourselves short to our collective land system. In the course reform and improve of collective land system, we should focus on the optimization of the collective decision-making mechanism and benefit sharing mechanism, to play and develop the advantages of the collective land system sufficiently and appropriately to effectively resolve the holdout behavior that harm the interests of the society and vigilant and guard against "private tragedy" in China.(9) Constructing land assembly districts system based on property management innovation theory to solve the holdout predicament under the negotiation mechanism of "one to one". The design of land assembly districts system can be divided into two stages. In the first stage, based on the property rights innovation concept led by public power (top to down), through the public private partnership and collective collaboration to achieve efficient and orderly land assembly and this is mainly applied to the transformation of the old city, the transformation of old and dilapidated houses and the transformation of the villages in the city that needs to co-ordinate a variety of land types of projects. In the second stage, based on the property right innovation concept led by the contract freedom ("bottom to up"), to realize the efficient integration of land market through "collective collaboration", which is mainly applied to the general business projects. In the ideal level, land assembly districts system can effectively prevent and control problems of holdout in land assembly.