On The Real Right Problem Of The Land Purchase And Reserve System

The land purchase and reserve system is conducted under the legal procedure, follow the market mechanism, concentrates the land from different land users in the means of land purchase, land collection and acquisition, land recovery and land exchange. After being properly arranged and developed, the land can be supplied to the future land users. The land purchase and reserve system is based on the state ownership of land, and the right to conduct the action is authorized by the state. The land, as valuable as it is, is always involved in complex legal relations. The land purchase and reserve system provides a practical way of balancing the interest among the owner, user and holder of alieni juris; contributes to smooth the legal relationship regarding the land; and protects the right of each and every one of the parties.Chapter one defines the definition and the basic principle of the land purchase and reserve system. As a system still in its developing stage, the land purchase and reserve system provides a way of thinking and practical mechanism of the on-going system about the reasonable and effective utilization of the state own land resource. The land purchase and reserve system makes a reasonable rearrangement about the right relative to land under the on-going compensating state own land use system, and provides a safe and effective way of trading the right relative to land. These factors as a whole, on one hand ensures the state, as the owner of land, can amass the land by civil method and be the monopolist of the first grade land market, so as to realize the right as the land owner and fulfill the duty of the society runner; on the other hand, protects the right of land jus utendi and alieni juris, avoids the frontal confliction between the public and private right, and solves the right confliction within the range of private law. The land purchase and reserve system takes the legitimate principle, efficiency principle, equitable principle and public interest priority principle as its basic principles. Among them, the legitimate principle, as the profound request of the land purchase and reserve system, makes sure all the parties regarded following the regulation under the precondition of a perfective legislation. The efficiency principle and the equitable principle are the primary goal of the land purchase and reserve system. The land stands for value and fortune, and the land purchase and reserve system is to promote the development of the fortune, protect the right relative to land and make sure the distribution of fortune is fair and square. Though the public interest is an abstract concept, in the system of land purchase and reserve it can be presented by the regulation of land use as a long-term expectation by the public. The realization of public interest should prior to other right related to land, and the priority should only be applied based on scientific research and strict definition about the public interest.Chapter two makes clear the institutional foundation of the land purchase and reserve system and its values and functions. The land purchase and reserve system bases on the state ownership of land. The fundamental difference between the state ownership of land and the regular ownership of real estate is the subject. The state is a unique civil subject differing from all other civil subjects. Designing its own civil capacity by legislation, the state sets its right to enjoy and its obligation to assume. The state, as a civil subject, must realize its right in the civil range. The separation of powers and functions of the state ownership of land is the civil way realizing the state ownership of land. And it makes it possible for civil subjects to claim their right against the state. The value of the land purchase and reserve system lies in three aspects: the value of order, the value of efficiency and the value of equitable. The core of order is security. Under the precondition of the monopoly of the first grade land market by the state, the land purchase and reserve system provides the involved parties with secured trading floor. The thriving of market means the increase of fortune, and this shows the value of efficiency. By providing the mechanism of checks and balances, the land purchase and reserve system can grand the civil subject with the right to claim their interest against the state, and makes the distribution of social fortune reasonably fair. So the land purchase and reserve system can make the jural relations on real right clear; promote the reasonable utility of land; maintain and increase the value of the state own land.Chapter three analysis the interest lies on the land and the mechanism distributing the interest among different parties. According to the subject enjoying the interest, it can be divided into two categories, the public interest and the private interest. The public interest is an abstract concept. Based on the different preference given by the public interest, it can be considered in three ways, the economic public interest, the environment public interest and the social public interest. To provide effective protection, the public interest should be put into specific legal relations and be presented by land utility plan. The private interest exist on land is presented by the right relating to the land. To balance the public interest and the private interest, the principle of public interest priority and proper compensation to private interest should be adopted. The confliction between public interest and private interest should be solved by the land utility plan. The solution to the future confliction between them should be found in the application of Tradable development Right (TDR). TDR is a state own right, which can change the way of using land under the regulation of law. TDR presents the future interest on land. By setting and transaction of TDR, the future interest on land can be properly distributed and utilized, and compensation can be made to adjust the lost of the parties involved.Chapter four studies the content of the land concentration. As an important component of the land purchase and reserve system, the ways of land concentration includes land purchase, land collection and acquisition, land recovery, land exchange. Land purchase is the most regular way of land concentration, which is based on the agreement between the parties involved. Land collection and acquisition are the most effective way of land concentration, but can only be applied to achieve the public interest. Land recovery is to recover the right id land use. The land recovery can be fulfilled in three ways, the recovery without compensation, the recovery with compensation and compulsory recovery. The recovery without compensation applied to transferred right to use land and abandonment of right; the recovery with compensation can be applied only to achieve the public interest, which is similar to land collection only with compensation; the compulsory recovery is statutory, which can be applied only when the conditions set by law are met. The land exchange, which gets more and more attention from scholars recently, is the action to exchange land between different right and usage. All the land concentration ways lead to transaction of land right, and different way of land concentration result in different way of public summon. In the process of land concentration, the state have the preemption to assure the land concentration can be achieved, right of parties involved can be properly protected and compensation can be made reasonably and fairly.Chapter five makes clear the land arrangement is the most important component of the land purchase and reserve system. After the concentration of land, the land should be arranged to provide to the land users. The land arrangement includes the arrangement of right and the primary development. The arrangement of right is to fix the legal burden and fault on the land, which can assure the future land users to develop the land safely. The typical rights that might conflict with the state land ownership are leasehold of land, mortgage of land and easement. Solving these problems is the main task of the land arrangement. The other content of land arrangement is primary development, which includes compensation to former residents, destruction of abandoned structures, leveling the land and construction of necessary facilities. Through primary development, the"raw land", which is not suitable to supply to the future land users, is turned into"mature land", which can be used by the land users, and the value of the land is increased and reasonable utilization is promoted.