On Legislation Of Eminent Domain Of China

Protecting the property right of citizens is the main role of modern country which following rule of law. Land is the most important property for Chinese peasant. So, It is a big issue to protect the land property of peasant in for the constitutionalism and rule of law in China.There are lots of contradictions and disputes between different parties in the area of eminent domain. The central government believes China needs 0.12 billion ha (1,8 billion mu) farm land to ensure food security, hence, it apply itself to established one severe land regulation system in the national level; However, the local governments have the different standpoint, they are more interests in economic development and fiscal revenue from eminent domain; land right holders wish protect their land rights and share the achievement of modernization and industrialization, but they can not find the enough legal"weapon"in the legal system of China to help themself. When the rural collective land was taken by government and land developers, the peasant just gets little compensation which maybe just ten percent of the market value of land or less.As a matter of fact, the root of most conflict in the area of eminent domain of China can be found in the defective land legal system. On the one hand, as the state of Chinese constitution and other land laws, the implement of eminent domain should based on"public interest"; on the other hand, as the state of Land Administration Law, All units and individuals that need land for construction purposes shall, in accordance with law, apply for the use of State-owned land, with the exception of the collective economic organizations and peasants of such organizations that have lawfully obtained approval of using the land owned by peasant collectives of these organizations to build township or town enterprises or to build houses for villagers and the units and individuals that have lawfully obtained approval of using the land owned by peasant collectives to build public utilities or public welfare undertakings of a township (town) or village. As the result, the government establishes a ban to the Collective-owned land into land market directly, except the Collective-owned land transfer into State-owned land via the system of eminent domain.In the process of eminent domain, the land developer's interests and rights are always in the risk in the process of land expropriation, too. They can not get the guarantee of land use rights from government, but have to provide the early stage of compensation and other negotiation costs to peasant. For the peasant, they have no right to appeal the decision of land expropriation of local government, neither via administrative review, nor the administrative proceeding; they also can not share the appreciation of land value, as they are just the land user but not the land owner.Although there are some differences on the eminent domain system among the developed countries due to their respective national conditions, yet there is a great similarity among them on the cognition of the public interest purpose of eminent domain and procedure regulation and fare compensation of eminent domain power. As for eminent domain purpose, a considerable amount of countries have established a concept of strictly interpreting"public interest purpose"and a"Consultation Purchase"program which is supposed to be sincerely implemented before land acquisition. In addition, the implementing of the judicial review system based on"public interest purpose"among some countries installs a"brake"device for the operation of eminent domain power. Speaking of eminent domain program, the government plays a main role in the approval of eminent domain rather than the dual role as both"player"and"referee"in the process of acquiring land first, followed by land sales. At the meantime, many countries have established a judicial review procedure for the purpose of settling the compensation disputes and the issues of disagreement of land acquisition decision, which indicates that they attach great importance to the manipulation of jurisdiction on land expropriation power. When it comes to eminent domain compensation, almost all the countries have established a"market value"standard of compensation and some countries have even established a"land price addition"standard of compensation, striving to make up for the sacrifices already made by the people whose land are acquired for the interest of the public.Basing on the experiences of eminent domain of developed country, and also following the guidance of the report of the third plenary session of Chinese Communist party's seventeen on the land system, the reform of eminent domain of China in the future should following the next steps.Firstly, the legislation of eminent domain should base on the unified land market in the urban and rural. The Collective-owned land must have the same legal status with the State-owned land.Secondly, the power of land expropriation of government should be strictly limited by the principle of proportionality, the principle of dual process of law, and the principle of legal reservation, even if the power of land expropriation is meeting the demand of"public interests".Thirdly,"public interests"in the system of land expropriation should be shape and clearly defined. The confirmation of"public interests"has to pass the test of substance justice and procedural justice. The judicial review system is also a very important and necessary mechanism to regulate the power of land expropriation.Fourthly, to protect the right of land holder, every specific administrative act of government should to follow the principle of due process of law. In the meantime, the central government needs to enhance the legal status and legal validity of land planning, decentralize the power of examination and approval of land expropriation. The judicial branch of government also should to review the process of eminent domain and compensation, if the citizens take the cases before the court.Fifth, the model of eminent domain in the legal system should be abolished in which the government, with the style of Authoritarian, is the party who decide when and where to enforce the power of land expropriation. In the future, as the applicant to develop the land, land developers have the right to negotiate with the land right holder on the issue of land expropriation and compensation.At the last, it is have to changed that the local level fiscal revenue system which dependent on land incomes seriously. In the future, the land owner, land use right holder and the government will share the benefit of appreciation of land value.