On The Collective Construction Land Use Right Transfer Legal Regulation

This article through analyzes our country's legislation condition of the right of using collective constructional land, points out because our country law forbids or limits it continuously to enter the market to circulate, causing the two-track system in city and countryside. That is to say, the rural enterprise, the farmer housing, the collective public facility and the public utility may use the collective constructional land, while as the city enterprise, the city peoples and so on must use the state-owned land. If the Latter needs to use the collective land, firstly they must request the country levies this collective land, then sells or transfers for the land user. Thus, the land levies becomes the only legitimate supplies way to use urban construction land.However, Along with socialist market economy development, particularly with the industrialization and urbanized advancement, constructional land demands rise rapidly. The method that land levies taking the only legitimate way of land supply cannot satisfy the need of urban construction and creates massive complex and serious issues. In planned economy time, the main problem of land levy system is the country accumulates for the industrialization but sacrifices the agriculture. While in the market economy time the main question is that we have sacrificed the countryside and farmer's benefit for the urban construction low cost and the high velocity as well as the city industry and commerce capital accumulation. At the same time, the policy that government monopolized the first level of land markets deprives farmer's right of land development. Therefore, the farmer is unable to use the land to attract investment, also cannot share the land increment benefit which the urbanized advancement brings. The unreasonable land levy system and the unequally land market policy causes the rural economy developed slowly in more than 20 years. The continual impoverishment of farmers, the expanding differences between town and country, and the Massive urban fringe crowd bring huge hidden dangers to social stability and the national long-term security. All sorts of questions caused by land levy policy indicated the system in which the government monopolized the first level of land markets already could not satisfy socialist market economy's intrinsic request. On one hand, with the deepen reform of land system and the development of market economy, thecities state-owned land marketability degree is enhancing unceasingly, and the land price in market is also more and more high. On the other hand, the collective constructional land marketability is restricted for a long time, which directly causes the collective constructional land massive hiding enters the market. Although this procedure itself has a series of problems, for example it creates land market disorder, the land congenial is serious, and the farming land is destroyed and so on, it is advantageous to the countryside to attract investment, effectively use land resource and develop economy. It had reflected the countryside and the farmer's reasonable demand to develop economy and improve life condition by using the land in market. Therefore, this behavior of hiding enter the market should not be simply to deny. It may explain in the economic for causing system vicissitude. It's on the one hand demonstrated the present system is unreasonable and the low efficiency, on the other hand indicates the farmer to present system being accommodating. However, under present law, farmer's accommodation is unable to go round the legal restraint, regardless how many advantages it has. As a result of legislation and system itself unfairness, the court decision result also often cannot fairly solve between litigant's disputes, even intensifies the contradiction. Therefore, In order to protect litigant's legitimate rights and interests, the law must acknowledge and regulate the land circulation behavior and make it legally.In reaction to the behavior of hiding Entering market, the government adopts the strict limit means at the first. This method not only has not been able effectively to restrain the hiding enter the market behaviors, instead increasingly fierce. Thereupon, Government's policy transfers from "prohibition" to "unblock". The government positively explores the circulation way of collective land property, and has formed "the large expanse of comprehensive development pattern", "the Nanhai pattern", "the Wuhu pattern" and "the Suzhou pattern" etc. These patterns have a common ground: The countryside land system reform must orient to the direction of free circulation and marketability. This reform direction not only may cause the farmer to participation to in the national urbanization and the industrialization advancement, it also may fully use the existing construction land, raises the land-use capability.The permission of collective construction land circulation, realizing the city andcountryside construction land market to connect rails, are the inevitably choice to deepen the land market reform and to regulate the land market order. This choice has the full theory basis. First, says from the economic angle, it is the inevitably request to respect the farmer's development right in land, to overcome exterior effects in land utilization, to enhance the resources disposition efficiency, and to construct socialism new countryside. Next, says from the legal science angle, it is the basic way to realize equality between collective land ownership and state-owned land property rights, and to restrict the abuse of land levy power.Although the collective construction land system reform must orient to the direction of free circulation and marketability, in the process of circulation it still had the possibility to have a series of problems, such as the increase of urban construction cost, the impact to city real estate market, the destroy to the cultivation land, and the embezzlement of some members of the village board. This needs the law to give effective rules and regulations to the circulation behaviors in the foundation of acknowledge them. First, "People's Republic of China Reality of laws Draft" must reflect the practice demand, entrusts with the collective land ownership to be possible to circulate. Next, the draft must establish and consummate the necessary system, including the well definition of the body of collective property right, to perfect community democratic system, to fundamentally reforms the land levy system and strictly definite the levy scope within "the public interest", and to perfect land use control system in order to protect farming land and grain security.In brief, the law must allow the collective construction land employment right to enter the market to circulate, in conform to the land utilization plan and under the land use control premise. This is the basic direction of our country's collective land system reform.