A Study Of The Land Acquisition System In The Field Of View Of Protecting The Rights Of Farmers

Infringement of farmers'rights due to the land acquisition by the state is one of the most prominent and serious problems in the process of modernization and urbanization in our country, and the incidents involving rural masses engendered by the state expropriation of land have already accounted for the majority of the nationwide rural masses events, making up a great threat to the stability of the whole society and the healthy development of economics in our country. Principally, in the current studies of land rights of farmers and land expropriation in China there are two problems: one is the absence of a historic investigation into the circumstances of the land rights of farmers, hence no historic elucidation can be given to the status quo of farmers'land rights being trespassed at present; and the other is the deficiency in uncovering the problems of values behind the existing system, apart from the efforts on how to remedy the defects of the system of its own for its perfection. All this has brought about the author's theoretical thinking about the relationship between the eminent domain of the state and the land rights of the farmers.Via a survey of the ancient land system, it is demonstrated that ancient China was short of land ownership in its modern sense, and that no absolute, exclusive and monopolistic rights had ever been conferred upon the privates. This is a consequence of the system design in ancient China in which the political, economic and legal regimes were all devised around the"Kingship concept", whereunder the political power had dominated the private land rights. Since no conception or tradition to respect the personal property rights had been formed throughout ancient China, accordingly such a system could not be generated. Now that the private land rights were throughout menaced by the public authority of the state, the content of such rights were incomplete and the status unstable. By combing through the system of land rights of farmers in China since 1949, the author makes an investigation of the shift of this system from private ownership to collective ownership and collective management to collective ownership and family management, with intent to uncover the process of formation of collective land ownership in China.By combing through the theories of private property, the foundation of legitimacy for the private property is justified from the viewpoint of the theory of human nature and the theory of natural law. In light of an inquiry into the motive in establishing the eminent domain of the state, it is demonstrated that the legitimate foundation for the state eminent domain lies in the possible achievement of public interests. The state eminent domain, which is exclusive in virtue of its sovereignty and is exercisable for the purpose of public interests, is a public power of the state to restrict or expropriate the property of the imposed subject with enforcement. The eminent domain of the state, however, has been thoroughly alienated into an instrument of encroaching on the farmers'land rights in contemporary China; the origin of alienation rests with the deviation of the idea of development, and moreover, the unreasonable design of the system turns the Government into the party with interests; then some effective approaches to restrict the state eminent domain are proposed here: goals of public interests, due procedure and just compensation.Based on a generalization of the concept and characteristics of public interests, and an analysis of the conflicts between the public and individual interests, the author holds that the tenet of settling the conflicts is to obey the supremacy of public interests, and then justifies the argument for this principle from the two aspects of the existence and development of community and of the purpose of public interests. Yet he also warns that this supremacy is in no way an absolute, universal principle without any restrictions, but some necessary restrictions shall be imposed on its application, lest it be abused. Primarily, such restrictions are to be effectuated by means of the proportionality principle, due procedure principle and just compensation principle. And then the author proceeds to inquire into the criterion and method of how to define the public interests. The criteria to define public interests is considered to include the beneficialness criterion, the publicness criterion, the criterion of direct, and substantial benefit for the public, and the legality criterion.As it is pointed out that China's land acquisition system design does not reasonably deep, there are two fundamental reasons: the first is the value deviation occurred, the second is the inherent drawbacks of the system of the right to collective ownership of land. On this account, there must be a demand for a transition of the conception, viz., a shift from the excessive pursuit of economic development and emphasis on economic construction above all to full respect for and protection of human rights in the pursuit of economic development; and a shift from the national standpoint of state-centrism to the rights-based standpoint of appropriate promotion of individualism, hence to establish firmly the basic idea of safeguarding the rights of farmers, and On this basis, realization of reconstruction of the two systems, namely, reconstruction of rural land ownership system and reconstruction of land acquisition system, pointed out that the previous system of innovation is the way to solve the root of the problem of farmers ' rights.Through a study of the two ancient systems of collective land ownership which respectively existed in Marc commune in Western Europe and in the villages in India, it is pointed out that the existence of these systems of collective ownership must have matched the specific economic and social bases, viz., in accordance with the relative backwardness of their production capacity, the system arrangement of primitive and backward. The analysis on the disadvantages of rural collective land ownership system in China are the phantom of the subject of title, the incomplete function and fuzzy feature of ownership,with the advancement of national ownership of inequality ,depriving the typical nature of title to reduce it to"quasi-ownership", vulnerable to the violation by the public authority of the state, so as it is pointed out, this system with its inherent defects can be hardly perfected by way of modification from within. On the basis of a comparative analysis of a few chief reform schemes, the author puts forward a viewpoint that to establish a system of coexistence of a variety of ownerships with the farmer's ownership as its mainbody should be accepted as the developing direction of the future rural land system in China; From many aspects to take its theoretical justification; based on the response to the queries from the opponents, the author proposes a preliminary assumption about the conditions to implement such a reform. Currently, proper conditions for hopeful reform are not available yet in China, but decades later, when it has become more democratic politically, the nomocracy construction has been promoted to a certain level, the urbanization has been boosted to a certain extent, the social security system has benefited all the farmers, andwhen the preposed or supporting reforms like the reforms of the household registration system and tax system have been generally in place, in a word, when all such conditions basically suffice, the proposed reform can be carried out with steady steps.To reconstruction of land acquisition must on the basis of upholding the farmers'rights standard .As to the choice of the public interests legislation mode, the author advocates choosing the mode of generalization plus enumeration, more specifically, he suggests a double enumeration pattern. With respect to the expropriation procedure system, he proposes establishing a public interests confirmation process, a negotiation-purchase process, and a right of retrieval system, and improving the processes for the participation of the imposed subject, and of hearing and relief. As for the expropriation and compensation system, he argues for the principle of fair compensation, with the expropriation agency as the compensation subject of duty and the farmers as the main subject of rights; he agrees to expand the scope of compensation, for other losses greatly suffered from the expropriation should also be counted in; the standard of compensation for the requisitioned land should be made on the basis of market price standard, supplemented by the standards of addition compensation and resettlement price; as concerns the compensation mode for land requisition, a system of compensation modes ought to be established that takes currency indemnity as the principle and non-monetary compensation or alternative remedy as supplementary.