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Urban And Rural Construction Land Transfer Legal System Research

Posted on:2012-07-07Degree:DoctorType:Dissertation
Country:ChinaCandidate:S H WangFull Text:PDF
GTID:1116330335992091Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The land market in China has long been formed on the basis of the ownership system which segments the urban and rural land. The free circulation of Collective land for construction is in principle forbidden. The land, therefore, should be collected by the country as national owned land and be used for city construction after its usage right being remised. In this way the country monopolized both the buyer's and seller's market. The farmer collective cannot decide the circulation and use of their own land. The powers and function of disposition and gaining interest of the collective land is seriously limited and is not treated equally on legislation with the relative rights of the national owned land. As a result, the farmers are restricted from sharing the urbanized interest with the land capital.On the other hand, the fact that collective land cannot be freely circulated through market trade results in the structural shortage of construction land between urban and rural area, i.e., the urban storage land cannot satisfy the needs while large amount of collective construction land is used inefficiently or even left unused. The degree of the freedom and limitation of the rights of collective land is of great significance to the reasonable allocation and sustainable use of land resource. It's highly demanded to reform of the construction land system with the core of unified circulation of both urban and rural construction land on the premise of market reform of the collective construction land.This thesis consists of three parts, i.e., introduction, content and conclusion.The content mainly discussed the following issues:Part One:The analysis and reflections on the circulation system of the urban and rural construction land in China. This part analyzes the difference of the powers and functions between urban and rural land rights and the legislation transition of the restrictions of the circulation system of urban and rural construction usage rights. The legislation that the same land of urban and rural construction land enjoys different rights limited the property and development rights of collective land and leads to the result that farmers cannot share the achievement of urbanization and industrialization with the land capital. The identity of the land should not be considered as the reason to limit the circulation of collective construction land. Urban and rural construction land should be circulated generally on the premise that the usage rights of collective construction land be treated equally and allocated by the market. The theory of equal property rights, the theory of equity rights, the theory of development rights of land and Marx's theory of land rent formed the theoretical basis of the system that the usage rights of urban and rural construction land be circulated generally.Part Two:The standardized reform of law of collective land requisition. This part analyzes the current collection system of collective land and its harm to the circulation of urban and rural construction land and raises the idea that the collective land be collected and requisitioned according to the property rights principle and responsibility principle of the equity rights. The range of public interest decides the limitation of the free circulation and restrictions of collective land and limits the collection into the range of usage for public interest. Meanwhile it keeps the channel for circulation of land used for non-public interest. The above measures protect the exchange interest of collective land rights and prevent the misuse of collection rights driven by economic interest by setting up the standard of reasonable compensation coherent to the price in market and generalize the pathway of collection and requisition of construction land. Complete procedures of agreement, hearing and quashing should be established to protect the entry of collective land into the market.Part Three:The reform of law on market oriented circulation of collective land. This part analyzes the basic pattern of collective land circulation in China and holds that different circulation system should be implemented for the market oriented circulation of collective land within and outside the urban planning area. To be specific, the collective land inside the urban planning area may be purchased by the government and transferred to national owned land and then the usage rights could be remised. The usage rights of collective land outside the programming area could be circulated in the market on the basis that the circulation obeys the programming of the land use. The market oriented circulation of the usage rights of collective land is the main type of farmers taking part in the urbanization construction with collective land capital. The patterns of circulation of usage rights of collective construction land mainly include traditional ways as remising, transferring, mortgage, renting and buying shares and also unique ways as the circulation of quota. The range of usage rights of collective construction land covers the subject range, object range, regional range and usage range. The interest of the circulation of usage rights of collective construction land should be distributed among the owners, users and the country according to the principle that the first distribution based on property rights and second distribution based on contribution. Part Four:The reform of law of independent development rights of collective land. This part introduces the development rights system in UK and U.S.A and holds that the absence of development rights of land affects the completeness of rights of collective land and the integrated circulation of urban and rural construction land. It's necessary to establish independent development rights of collective land. The non-agricultural system and agricultural land sustain system based on the rights operation should be established by drawing lessons from the land development rights system of U.S.A. Since the development rights of land has the common characteristics of property rights, independent development rights of collective land can be added into the rights system of land in china. Then the balance. of economic interest of the obligees of farmland and construction land through the circulation of development rights could be achieved. In this way, large amount of farmland would be prevented from becoming non-agricultural land. The reasonable circulation of urban and rural construction land would be promoted. Meanwhile, the independent property rights of the development rights of land should be considered when deciding the compensation of collection and distributing the interest of circulation.Part five:The establishment of law on the integrated circulation of usage rights of urban and rural construction land. This part raises that the legislation should unify the concept, nature and circulation limitations of the usage rights of urban and rural construction land and form the legislate basis of integrated circulation. The freedom of rights of collective land should be protected. The usage rights of urban and rural construction land should be unified. The pattern of setting up and circulation, the procedure and time limit and registration of circulation of urban and rural construction land should be unified to realize the general circulation of the same land and same rights. The legislation of integrated circulation of usage rights of urban and rural construction land should be completed. The land policy should be coherent to the law system. The extent of the rights of public and private legislation should be connected. Therefore, the circulation of urban and rural construction land could be generally programmed. It will also provide suggestions to the perfection of the Constitution, the Land Management Law, and the Real Right Law. The mating law system should be completed such as the control on the use of land, the storage of land, the distribution of the circulation interest, the management of the price of circulation, social security, etc.In conclusion, this thesis discusses the standardization of collection of collective land, the market orientation of circulation of collective land, the establishment of system of reforming teh independent development rights of collective land, the equalized and market oriented legislation of the usage rights of collective land, the perfection of legislation on circulation of usage rights of collective construction land, and provide law support to the integrated circulation of urban and rural construction land.
Keywords/Search Tags:circulation of urban and rural construction land, rights of collective land, freedom and limitation, usage rights of construction land, equality and market orientation
PDF Full Text Request
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