Study On Urban State-owned Land Property Rights In China

Basing on the analysis of the situation and problems of state-owned urban land property rights in China and the research achievements of the real property law, we construct a land property rights system referring correlated new institutional economics theories, which is definitude in principle part, specific in principle part, canonical in quality appraising, scientific in quantity measurement and making graduation in authorization and management.In this paper, we first review the evolution of urban land property rights system after the foundation of China, and analyze problems and bad consequences that exist in today's land property laws and regulations and in land property administration, and then discuss deeply the reasons of those issues. After introducing successively the Property Right Theory, the Transaction-Cost Theory and the Principal-Agent Theory, we explain the basic points: Clear property rights can reduce the transaction cost, and enhance the resource disposition efficiency; transaction cost may distinguish the system efficiency; establishment and consummation of motivation & restriction system is the core of the Principal-Agent Theory, and so on.On the basis of correlating theory and practice, we draw the conclusion that property rights must be designed on Continental Legal system after analyzing the practice and research of domestic and foreign correlative real rights and land property rights. And then we consummate and optimize traditional state-owned urban land property rights comprehensively and systematically, such as land ownership, allocated land-use right, the authorized management land-use right, especially taking as shares (investment) land-use right, tenanted land-use right as well as the land right of mortgage, land tenancy right and neighboring right and so on. We also redefine the conceptions, and emphasize the characters: (1) There are some legal loopholes on the allocated land during the reform of state-owned enterprises, and we put forward the concept of retention allocated land-use right to take as shareholders (investments) for the first time in order to solve the problems. (2) The present authorized management land-use right is a suspect of getting out of line and infringing the legitimate benefits of local governments, former land users and correlated shareholders, and that is the reason why we bring forward a consummating project. (3) After analysis the character of real rights of tenanted land-use right, we point out the mistakes of the method that is used to appraise tenanted land-use right in the Regulation for Valuation on Urban Land and then we design a new appraisal method. (4) We emphasize the legitimacy of land repetition mortgage andoperational land mortgage about hospital and school. In this paper, we also carry on comprehensive, systematic and complete innovation design to some land property rights, which massively exist but not supported by law, such as air space right, land servitude right, pawning right, land priority right, exclusive, common, co-ownership land-use right, land encumbrance and superficies right. For the first time, the consummate conceptions of land priority right and co-ownership land-use right are put forward in China.The elementary theories and essential methods about land property rights appraisal are introduced for the purpose of quantification land property rights. We bring forward the conception of comprehensive urban land capital for the first time, and modify the Cost Approach Method by weighted-average the urban land development cost. The modification overcomes the difficulties of being highly subjective, randomization and the difficulties of holding land development expense range and value accurately. Also, we consummate and regulate Income Capitalization Method by renovating the structure of income and cost and by dealing with depreciation scientifically. We make discussion and innovation on evaluation methods for some special land-use rights, such as tenanted land-use right, allocated land-use right, air space right, comprehensive use land and other rights "lease land right, land right of Mortgage, land neighboring right" over land. We analyze and discuss the appraisal methods and the procedures of different kind of land-use types systematically, and promulgate the inherent laws and special characters among them. We negate some relevant regulations in Regulations for valuation on urban land for the first time in China. And propose elementary overall and new appraisal thought and method about tenanted land-use right.We analyze the theory orientation, the practical operation, achievements and problems of state-owned asset property rights management. According to the Principal-Agent Theory, we suggest that the graduation & authorization management model should be taken in the administration of the urban state-owned land property rights, and also study how to establish perfect land property right graduation & authorization system. We point out especially that surveillance and inspection of state-owned land property right should be highlighted.