Research On The Right Of Collective Construction Land Under The Perspective Of Property Law Construction

The right of land use is the way to achieve the market allocation in view ofproperty law. The basic requirement of the market allocation of land resources is thenegotiable of land. The purpose of Property Law construction is to distinguishbetween public and non-public interest land and to allow the establishment of thenegotiable right of land use on the non-public interest land.Urban-rural integration process and equality of property rights urgently requirethe completion of Property Law construction, the establishment of the negotiable rightof collective construction land and transformation of the non-transfer collectiveconstruction land. When the development of city and industry reaches to a certaindegree, the urbanization has become an inevitable trend. The circumstances in ourcountry,the contradiction between the number of farmers and jobs, uneven economicdevelopment, family problems and children's education, will decide the way ofintegration of urban and rural. It also means rural areas must be independent ofurbanization. It lies in the liberation of the farmers from the land and the solution oftheir employment problems. However, the government can not completely solve theemployment problems of famers. That is to say, the urbanization in rural areas mustrely on self-urbanization in large extent. The key to solve the major problem of self-urbanization in rural areas is to make an inventory of the land assets and provideland resources and financial support."The same land with the same right" betweenstate-owned construction land and collective construction land, which proposed by thethird plenary session of the17th central committee of CPC, is the inevitablerequirement of integration of the urban and rural. It has pointed out the direction ofcollective construction land reform. The right of use of the stated-owned land andcollective construction land are both usufructuary right. They should be subjected toland use control and should be treated equally.As the embodiment of the principle of property equality, the theory of "the sameland with the same right" provides the theoretical base of Property Law constructionof the right of collective construction land. It means that the same use land can be setsame nature right,given the same law status, subjected to the same restriction,appliedto the same legal protection and to achieve the same function.On the basis of "the same land with the same right", collective land andstate-owned land can both establish the same natural right. In the formation ofsocialist market economy, the right of state-owned construction land has completedthe Property Law construction. The right of collective construction land should alsocomplete this course, but Property Law stopped at the regulations of the LandAdministration Law and didn't complete this course. The main reason for thissituation is that the right of collective construction land under the present system isdesigned to solve the dispersion use of collective land under the circumstances ofmarket economy, which led to the direct identity contact between farmers and theland.However, the law prohibits the establishment of the negotiable right of collectiveland,the central policies, the local legislation and the practice of experimental areashave been engaged in exploring. Central policies raise the problem of non-agriculturalconstruction land entering the market from the macroscopic view and the negotiableright of collective construction land carefully as well. The distinction between publicinterest land and commercial construction land, the reform of expropriation systemand the registration system, will help the right of collective construction land to become property right. The local legislations and the practices of experimental areashave made a useful exploration about subject, object and decision-making process,etc.The above explorations have made some progress, but they still do not achievesubstantial breakthroughs. The negotiable right of collective construction land is thepremise of circulation of collective construction land, so the key to reform collectiveconstruction land is to establish the negotiable right of it. The current practices andexplorations have made efforts to promote the circulation of collective constructionland, but they haven't designed the path to establish the negotiable right of collectiveconstruction land, nor have completed the transformation of non-transfer collectiveconstruction land.In order to solve the problem of collective construction land reform and tocomplete the Property Law construction of the right of collective construction landwhich is based on "the same land with the same right",we should take into accountthe obstacles, such as inequality between collective land ownership and state landownership, direct identity contact between farmers and the land, unreasonableexpropriation system. Therefore, it should complete the remodeling of collectiveownership with the completion of Property Law construction of the right of collectiveconstruction land. Then it should standardize the new collective construction land andthe existing collective construction land and put them on the road of steadydevelopment. It also needs to purify land expropriation system, land planning,financial transfer payment, social security and other supporting systems.The remodeling of collective ownership is the premise of establishing thenegotiable right of it. We should accord to the regulations of Property Law toreformate collective organization and improve decision-making process, so as toshape the collective organization to meet the requirements of the civil subject. Theregistration process to define the state-owned land and collective land can remove theobstacles of unclear object of the right of collective construction.To establish the negotiable right of collective construction land, we should adoptthe transfer means or the allotment means according to the distinction between commercial and public interest land. Natural persons and legal persons who arebeyond the collective organization using construction land must take transfer means.Though the land used by township enterprise should also take transfer means, we canachieve the purpose of investment promotion by the way of reduction. Theestablishment of right to homestead should cancel allocation means gradually. Forthose pure public welfare undertakings, we ought to take allocation means. Thecreation of the negotiable right must be regulated in terms of the substantiverequirements, for example, subject, object, content, etc. and procedural elementssuch as decision-making, approval, registration etc.The composition of the existing collective construction land is very complex,itstransformation should be standardized on its classification. Public interest collectiveconstruction land is unsuitable to transform. The right of homestead should takedifferent rules to meet the different situations. The top priority at present is to registerthe illegal construction land in order to provide a basis for future processing.Property law construction of the right of collective construction land need topurify the land expropriation system, land planning, financial transfer payment, socialsecurity and other supporting systems.Land planning and land controlling will help to prevent the loss of cultivatedland. Urban and Rural Planning Law has extended the land planning into rural areas.Now what need to do is to remove the binary remains in Urban and Rural PlanningLaw. The more important thing is to apply the implementation of land planning andland controlling in the city to rural areas. The purpose is to establish integrated systemof land planning and land controlling between urban and rural areas.Land planning and land controlling have resulted in some of the agricultural landfailed to transfer into construction land. Thus it will cause unfair problems. It requiresthe financial transfer payment system to solve them. Financial transfer paymentsystem will help to ease inter-district unfair, decrease the impulses in land of localgovernments and farmers.Unreasonable land expropriation system is a huge obstacle to the establishing ofthe negotiable right of collective construction land. The most critical solution of land expropriation system reform is to define the public interest reasonably and to narrowthe scope of land expropriation. The compensation form of land expropriation shouldalso be innovative.The existing rural collective land system has shouldered the function of socialsecurity. Cutting off the identity contact between the farmers and the land, it shouldnot only need to complete Property Law construction of the right of collectiveconstruction land, but also depends on reform of social security system in rural areas.In order to achieve the reform of the social security system, it should be in line withthe principles of voluntary by farmers, innovation of social security form and enhancethe security cost-sharing mechanism.