On The System Of Land Development Rights From China's Perspective

As a new lega l concept, the la nd development right provides us with a lega l method toalloca te la nd resources separately in addition to relying on the ownership method. Inthe event that ownership method"divides"the la nd horizontally by identifying thearea of releva nt la nd so as to determine the attribution of such la nd, the la nddevelopment right will be the way to vertica lly determine the scope of developmentactivities above the la nd by facilitating the la nd resource to be alloca ted subtly. Underthe system framework of la nd development rights, la nd development potentia l couldbe the objective of the la nd owners or la nd users, and could be freely disposed in themarket by the la nd owners. In this connection, the author believes that the la nddevelopment rights could be introduced into China. This thesis will theoretica lly studythe system of la nd development rights from China's perspective based on thecomparative research and systematic analysis.There are totally six chapters in this thesis. Chapter I genera lly covers the reason toresearch China's la nd development right system and how to research the same byintroducing the research background, current academic achievements and researchmethod.This thesis believes that the la nd is fairly rare in the modern society, and thus the la nd development potentia l enjoyed by the la nd owner is also rare. To build la nddevelopment right, which is oriented to the la nd development potentia l, will do goodto efficiently alloca te the la nd resource, especia lly in China. The releva nt overseaslega l system could be a good reference. However, the system build ing of la nddevelopment rights in China should be based on Chinese actual situation.Further, Chapter I summa ries the current academic achievements regarding la nddevelopment right. The author believes that China's scholars have not studied la nddevelopment rights thoroughly. Specifica lly, they have not analyzed la nd developmentright sys tem from the perspective of la nd resource alloca tion; they have not specifiedthe differences between overseas la nd development right system and China's la nddevelopment right system and the feasible solution in China; most importantly, theyhave not systematica lly researched the la nd lega l system since there is not ma ny lega lscholar specia lizing in the la nd development right. In this regard, it is necessary andimportant to study China's la nd right system. This Chapter also states that compared tothe internationa l academic achievements, China's la nd development right systemresearch is"regiona l"study, which decides that the research method of this thesis.Since the thesis focuses on the enhancement the efficiency of the vertica l alloca tion ofChina's la nd resource with the help of the granting mecha nism of la nd developmentright, its structure follows the thought of"la nd development right system---China'sla nd development right system---rules to build ing China's la nd development rightsystem-legisla tive proposal to China's legislation regarding la nd development rightsystem".As the introduction to the system of la nd development rights, Chapter II clarifies whatis the la nd development right, what is the practice of build ing the system of la nddevelopment rights in other countries and areas, and how could we build the system ofla nd development rights.The author believes that the la nd development right is the lega l method for the la nd owner to adjust their control over la nd development potentia l as a result of theseparation of their partial la nd development potentia l and the la nd itself. We canidentify, in the alloca tion system of the la nd development potentia l, the la nddevelopment rights and other releva nt powers or rights. Specifica lly, the power toinitia lly determine the la nd development potentia l by the government is the pla nningrights in the urban and rural areas; the owner will determine the initia l scope of rightsof the la nd development potentia l through the procedures for public comments; andthe la nd development rights are the tools to re-allocate the scope of la nd developmentpotentia l between the la nd owner and other la nd user.Based on the practice of other countries and areas in respect of la nd developmentrights, this thesis holds that there are two kinds of purposes for the establishment of thesystem of the la nd development rights: one is to fulfill the requirement of la nd users toenlarge the la nd development potentia l; the other is to ensure that the current la nddevelopment rights of la nd owners will not be illega lly destroyed. Nevertheless, thesetwo types of the system of la nd development rights both need to resolve the issuesregarding initia l granting of the la nd development rights, rights transfer and releva ntpla nning control, which consist of the genera l theoretica l framework of the systemestablishment of la nd development rights.Chapter III is"China's system establishment route of la nd development rights", whichis to clarify what is and how to set up la nd development rights. This Chapter thus hastwo sections, answering the afore-said questions. The first section focuses on the la ndlega lization issue and system establishment of la nd development rights and la ndresource alloca tion issues. The second section focuses on the basic principle ofChina's la nd development rights and the way to facilitate the system establishment ofla nd development rights.The author believes that the characteristics of the la nd resource alloca tion system inChina require that the la nd development right system must handle different issues regarding the la nd resource alloca tion in the urban and rural areas separately. In theurban area, market alloca tion system of la nd resource is not complete, since theregulation regarding la nd use right is related to the pla nning economy and the la nduser has no enough freedom to enjoy necessary la nd development potentia l alloca tion,therefore, it is necessary to give the la nd user more freedom by establishing la nddevelopment right system. In the rural area, the government controls the interestalloca tion in the collective la nd"transfer", which is not good to the bala nce of the la ndinterest alloca tion and causes, to some extend, chaos in the resource alloca tion systemduring the la nd transfer. In this regard, it is necessary to introduce the la nddevelopment right system so as to enhance the protection of the ownership of the ruralcollective la nd. Although the two types of la nd development right rules are operated indifferent ways, they could be consistent and cooperative under the system ofalloca ting la nd development potentia l. The basis for such consistency is the consistentpla nning system in both urban area and rural area, which requires the la nddevelopment potentia l should be able to transfer; the key of such consistency is thedual la nd resource alloca tion system in urban area and rural area, the government shallbe in core status.With respect to build ing the la nd development right system in China, the authorbelieves that the basic issues to be solved are the function of la nd development rightsystem, the core of such system and legislation cost. In this connection, this thesisanalyzes the afore-said issues and proposes three basic principles: la nd developmentright system is built to facilitate the la nd resource alloca tion by the market in China;the government should lead the operation of the la nd development right system; theestablishment of the la nd development right system should be based on the currentla nd lega l system. These three basic principles is especia lly for the actual situation inChina's la nd resource alloca tion and will genera lly lead to the direction of the la nddevelopment right system in China.Chapter IV specifies the system establishment of la nd development right in the urban construction la nd. The system establishment of la nd development right needs toanswer the issues regarding granting and transferring right, which is respectivelyfocused on by the two sections hereto. Section one is"the principle for the granting ofla nd development rights", clarifying who will grant the la nd development rights, howto grant such right, and the effectiveness of the granting. Section two is"the transferrules for the la nd development rights", clarifying how to realize the transfer of the la nddevelopment right by the la nd users with the help of the market.This thesis holds that the la nd development right is and lega l system arrangement forthe la nd users to adjust their la nd development potentia l under the framework ofprivate law. Compared to the pla nning change system under the current lega l system,the alloca tion of the la nd development potentia l is an innovation to the lega l systems.With regard to the granting of the la nd development right, the government is the rightowner to exercise the la nd development right on the state's behalf, and the la nd user isthe market pla yer, selected by the government in the market mea ns, to make full useof the state-owned la nd. To facilitate the reasonable use of the la nd, the governmentshould grant the rema inder of the governable la nd development potentia l within thetotal potentia l as determined by the urban genera l pla nning. In considera tion tha t theexercise of the state-owned la nd ownership is at severa l different levels, the la nddevelopment right should be transferred with some considera tion in the way ofcompetition based on the alloca ted area and determined la nd use purpose. Uponachieveme nt of the la nd development right, the la nd user have to take both positiveand nega tive lega l result. The positive result is that la nd users have the right to attachthe increased la nd development potentia l and the la nd itself with more freedom tocontrol the la nd development potentia l; the nega tive one is that the la nd users have toensure their activities to enlarge the la nd development potentia l will not do harm toothers, failure of which will cause them to be responsible for releva nt lega l liabilitie s.As for the transfer rules of the la nd development right, the author believes that such transfer should not affect the adoption of the regulation regarding la nd use right.Accordingly, the transferred la nd development potentia l should be limited by theinitia lly potentia l determined when granting releva nt la nd use right. If there is morepotential available, the la nd use right owner ma y separate such potentia l from the la ndand then transfer it with the prior approva l of the la nd owner. Needless to say, China'sla nd development right mecha nism is to adjust la nd use right owner's controlling ofthe la nd development right within the limitation caused by the nature of the la nd useright, therefore, the la nd development right could not be directly transferred betweenthe la nd use right owners, instead, the transfer has indirectly be done through thegovernment. Such transfer model determines that the rules for the la nd developmenttransfer and the mecha nism for the right granting have something in common. Thegovernment should withdrawa l the la nd development based on a duly examina tion,upon the applica tion of the la nd use right owner, with reasonable considera tion to thela nd use right owner, which should be determined by the market transaction price ofthe la nd development right. Furthermore, the government should grant the la nddevelopment right as pla nned according to the regulation on the la nd developmentright reservation, and the current la nd reservation system could be a good reference tothe reservation and supply of the la nd development right.Chapter V, with two sections, is"the system build ing of la nd development right onrural collective la nd". Section one is"the formation mecha nism of la nd developmentright", which specifies the basis of the formation mecha nism of la nd developmentright, the target of right granting and the effectiveness of such rights. Section two is"the transfer rules of la nd development right under expropriation system", whichfocuses on the administrative characteristics of the transfer of la nd development rights,the way to transfer la nd development rights and the effectiveness of the said transfer.With regard to the granting of la nd development rights, the author believes that thereexist rural collective la nd ownership and la nd contracting operation rightssimultaneously on the rural collective la nd, which decides the characteristics of the la nd development rights. This thesis holds that the Land Administration Law has builtsome space for the granting of la nd development rights by specifying that the ruralshould be"transferred to different use purposes before being collected". The processof transferring the use purpose of the rural collective la nd is also the process ofgranting releva nt la nd development rights. The right owner of la nd development rightsis rural collective economic organization, instead of its individ ual members. Thecontrol of rural collective economic organization on the la nd development right owneris embodied in the considera tion that the rural collective economic organizationreceived as a result of the transfer of la nd development rights. The scope of la nddevelopment potentia l should be consistent with the pla nning parameter of releva ntpla nning zones. The transfer of la nd development rights on the rural collective la ndmust be done through the administrative expropriation mecha nism, which is be in linewith the actual situation of China's la nd resource alloca tion. Meanwhile, such transfershould protect each individ ual of the rural collective economic organization throughthe due procedure to alloca te releva nt interests.With regard to the transfer rules of la nd development rights, the la nd developmentright regarding the rural area should be realized through the way of administrativeexpropriation. The government should guide and control the transfer of la nddevelopment rights and make sufficient compensation for such transfer, which is notonly good to increase la nd resource supply with lower cost as pla nned, but alsopositive to protect the legitima te interests and rights of both the rural collectiveeconomic organization and its members. Based on the requirement of la nd resourcealloca tion, the transfer of la nd development rights could be divided into dual transferof la nd development rights and la nd ownership and separate transfer of the same, eachof which has different lega l valid ities. The former transfer method will cause the ruralcollective economic organization and its member to loose the control over the la nd;while the latter allows the rural collective economic organization and its memberscontinue to use the la nd according to the previous use purpose, despite that they haveno longer enjoy the la nd development rights. Generally, the transfer of la nd development right has three characteristics as follows: (1) it is the government thatdecides whether or not the la nd development right should be transferred; (2) the la nddevelopment right should merely transferred to the government; (3) the considera tio nof the transfer of the la nd development right could not be determined by the order ofthe rural collective economic organization, but be determined by the appraisal pricevalued by a competent third party. In the event that the government is in violation ofthe limitation to its power regarding the expropriation of la nd development rights, therural collective economic organization has the right to resort to the judicia l organ forthe withdraw of releva nt illega l or unreasonable government expropriation activities.In Chapter VI, this thesis draws a reasonable conclusion for China's system build ing ofla nd development rights. First, China's system build ing of la nd development rightsshould make up the functiona l bug of China's la nd property system and facilitate thereasonable alloca tion of la nd development potentia l between the la nd owners.Specifica lly, system build ing of la nd development rights regarding the urbanconstruction la nd should lift the strict limitation of the construction la nd using system;system build ing of la nd development rights regarding rural collective la nd shouldbring more protection to the rural collective economic organization in theexpropriation of releva nt rural la nd. Second, with regard to the urban la nd, thegranting of la nd development right should be done by the government, while thetransfer of the la nd development right, could be done by the market with the guide ofthe government. Third, with regard to the rural la nd, the rural collective economicorganization could enjoy the la nd development right, transfer of which should be donethrough the expropriation conducted by the government. Forth, the la nd developmentright regarding both the urban construction la nd and rural collective la nd could beconsistent and facilitate the efficient alloca tion of la nd resource in one pla nning zonewith the guide of the government.Last but not the least, this thesis provides three legislative proposals for China's la nddevelopment legislation as follows: (1) China's la nd development right system requires specia l legislation; (2) the la nd development right system regarding rural collectivela nd could be covered into the lega l system of farmer la nd expropriation with the helpof nationa l legislation; and (3) la nd development right legislation regarding urbanconstruction la nd could be promulga ted by the loca l legislative organ for the transferof the la nd development potentia l, which ma y be developed into nationa l legislation asappropriate in the future.