The Reform Of Land System In Modern China:Review On The Perspective Of Public Law

This dissertation aims to answer the issue that "Why the social conflicts due to land issues are increasingly and becoming more intense in modern China."The answer appears to be the power of expropriation is abused by some local governments. However, the primary cause for these conflicts on land issues is the absence of equal and clearly defined land ownership and a standardized land management system. These defects in land ownership and management system lead to the abusion of land expropriation by local authorities. Although most of us are familiar with the the CCP land policy at different stages, the specific institutional change of "the land ownership-right of use" is always being ignored, such as the progression from "private own/private use" to "private own/collective use" to "joint ownership/collective use", and then, to "abstract public own/collective use". Neither is the development of "nationalization" of the city land in China.In the first part, the important institutional change in the filed of land property, from1921in which the first version of "the Declaration of Chinese Community Party" was published to date, will be reviewed from the perspective of " Right-Duty" and "Ideology-Social Reality". The cause of the institutional change of land system will also be discussed in this part.The frequent institutional change is not the only element should be responsible for the chaotic land property of China, the current constitution and land laws contribute to the conflict and vague of the land system, too. Starting from the Article10of1982constitution, the second part reviews the systems of "national land" and "collective land" within current legal system, and in turn, uncovers the possible causes of the tension between "national land" and "collective land". As the research conclusions show, the definition of "national land" and "collective land" in the current constitution and land law is not clear. As a result, we cannot get the right answers from land law to the question what is "the peasant economic collective", what is "the land own by peasant collective", what is "the city" in the law, what is "nation" in the law, what is "the land own by nation" and "who has the right to be the represent of nation to own the national land and enjoy the benefit of the development of national land", etc. We will discuss the misunderstanding between "nationalization of land" and "urbanization of land" which established by current constitution and land management law in this part.The question "why the land right of citizen was always violated" and "why the urbanization in China cannot escape from a bad deformity way" will be answered in this part, too.The problems of land management are also very important and cannot be ignored for the conflicts and intension within the land system. In1998, China established a system namely "the most restrict land management institution in the world" to protect the agriculture land, capitalization of national land and urbanization. However, the gap between the ideal and the reality is difficult to fill. Legislator cannot find the balance point, thus (1) we are losing the agriculture land continuously;(2) the governments (in particular local governments) make huge money from capitalization of national public land while the land and house price become improper high;(3) the disordered urban sprawl cannot be controlled yet. Some people believe that failure of the land management system is ascribed to the unreasonable "central-local" tax system formed in1994. It is just half truth. The imperfection of land management system itself should also be blamed for the bad situation of the land system. The institutional change of land management system and its defects will be discussed specifically in the third part.How to find a better way to get out the complex land maze? The point of this research is that we need to draw a "reform map" for the land property and land management of China under the framework of "Right-Duty" with the guidance of constitutionalism. This roadmap needs to follow several principles when it is drawn:(1) it should follow the theory of the Socialist Market Economy;(2) it should start with the reform of land property institution which should guarantee the equity of "national land" and "collective land";(3) a unified land market within which people have the right to access both "national land" and "collective land" equally has to establish;(4) perfection of land planning institution and Use Regulation institution is the forth step;(5) to establish a strict system for supervising and regulating the exploration power of government is the fifth step;(6) last but not the least, public participation should be become an important part for all fields of land management system.To practice this reform map, it is necessary to establish a specific path of institutional change which allows the local authorities to enact some unconstitutional legislation. Importantly the range of unconstitutional legislation must be strictly limited and should to follow the ideal of library democracy of course. From the perspective of The "Central-Local" Government Relationship, by reviewing the theory "Benign Unconstitutionality" and analyzing the model of "Notwithstanding Clause" which rise from Canada, the last part will find a new path which named "Constitutional Dialogue", to reconstruct the relationship of institutional change and legal order (especially constitutional order) in China. The framework of "Constitutional Dialogue" will provide a new perspective to relieve the tension between the institutional change in the land filed and legal order.