Research On The Circulating & Transferring System Of Rural Collective Land In China

Land is the most important production material and living goods for human being.With the development of the socialist market economy system, it becomes an objective requirement to allocate by market system the elements of production,e.g.land,labor,capital,etc..Since the complete set of transferring and circulating system has been established,the state-owned land is allowed to be transferred and circulated orderly according to law.But for the rural collective land,at the stage of initiation,restrictions and limitations to its transaction are plenty.Under the background of destructing the dichotomy structure of urban and rural,how to carry on creation and make breakthrough of the transferring and circulating system of rural collective land does mean specially realistic for improving the allocation efficiency of farmland,for preventing irrational transference and land idleness,for protecting both rural collective and farmer's individual rights and interests, and for promoting construction of new socialist countryside.Transferring and circulating of rural collective land is a necessary outcome during the economic development of China.On account of the defect of legal system,ways and procedures of transferring and circulating,and as provoked by interests,there exist plenty of unlawful expropriations,covert and illegal transactions,as a result,the increasing of deputes of land transaction has become one of main reasons of social instability.Under the current legal structure,the number of rural collective organization owns inadequate land rights,and land property rights are unclear,land user is not endowed the rights to transfer,rent,mortgage land utilization rights freely,so the facts mentioned above have influences on growth and betterment of the transaction market of collective land.These problems and contradictions in the land transferring and circulating system exist as difficulties and focuses of China's land system reform.It is the high time to take measures to resolve the problems by integrating collective land transferring and circulating with socialist market economic system,standardizing transferring forms,allocating profits rationally,so to improve the development of rural economic and social stability.Basing on the above mentioned thoughts and concentrating on the object of the construction of transferring and circulating system of rural collective land,the author develops the research with expounding and proving both theoretically and practically,drawing on foreign experience and combining with domestic realities,exerts to construct the system according with Chinese condition,and improves the construction of relevant legal system.Chapterâ… Guidance.As the conducting part,this chapter explains the backgrounds and causes of research,by beginning with the achievements and problems of China's rural reform and opening up in the past 30 years,sorting out the influencing hot issues relevant(the local regulation of transferring and circulating of collective land stipulated by Canton government, controversies during the legislation of property law,disputes about prohibition and allowance of so-called "minor property right house").For better orientation of research,the author also expresses and comments the present research conditions briefly and integrative,and introduces the main methods and arrangements evolved in this article.Chapterâ…¡Development history and current characteristics of rural land systems in China.It is practicable only to probe the path of reform basing on researching and judging the historic development and current situation.In this chapter,the main task is to lay out the research basis relying on realities,firstly by reviewing the four different forms of the development of rural land system from the foundation of new China,then by pointing out that the main legal characteristics of current system is the binary ownership of the state and the collective,the separation of ownership and utilization,and state monopoly of first level land market,and mainly by analyzing the serious restrictions and limitations upon the system construction,such as nihilism of subject,lack of key handling rights, restrictions of transmission,and serious lost of cultivated land.Chapterâ…¢Theory basis and system foundations of the circulating and transferring system of rural collective land.It is the question in pressing need for the researcher of answering what the causes, prerequisites and foundations of the system are.The theory basis and necessities of the system are elaborated hereby according to the principle of equal protection of property right,the theory of land development and the idea of integrative development of the urban and the rural.The specific explanations are further clarified as follows.The principle of equally protection of property right demands the alteration of incomplete condition of property right of collective land,requires the regulation of collective land to transform to be state-owned,and requests to allow gradually to transfer and mortgage the utility right of collective land;the research of the theory of land development right enlightens us that it is necessary to complete regulation of land expropriation and compensation,to loose the restriction of entry to market for collective construction land,and to explore mechanism of protection and compensation of fundamental agricultural fields;and the integration of urban and rural development in sociality and economics demands equal treat to the farmers whose land is expropriated by public,and also needs absorption of farmer labor,instruction of land transferring and circulating,and acceleration of small-scale town building.During the progress of building new countryside,the rural massive residence is advanced gradually as a result of transferring and circulating of utilization rights of rural residence land,and as the regional scale management is of contract and management rights.To improve the construction of transferring and circulating of rural land requests the relevant system basis,so it becomes the main purpose of this chapter to argue the three facets of clear definition of land property rights, perfection of social security and integration of land market.To clearly define land property right requires to standardize utilization rights of collective land and to promote registration;to amplify social security system demands to develop the rural system to be linked up organically with the urban,so to build a unified social security system between them;to integrate land market needs to perfect land element market,to standardize transferring and circulating, thereby to form a unified,open,competitive,orderly market system of urban and rural construction.Chapterâ…£Adoption for the reform mode of property right system of rural collective land.As for construction of transferring and circulating,the primary problem to resolve is the reform of collective land property right.Its perfection is surely regarded not only as the foundation and prerequisite of the guarantee and insurance to land property rights,but also as the impetus to rational allocation and use of rural land recourse,by the effect of property rights' stimulation,restrain and optimization for resource allocation,so followed by the protection of farmers' legitimate rights and interests.This chapter explicitly points out that perfection of collective land ownership is the most reliable and practicable proposal after the author's analyzing the nature,content and form of property rights of collective land and commenting the view points of land ownership of state,private,and pluralism.Simultaneously,the basic thoughts about reform of rural land property right system are carried out by different standpoints,that are to clarify the subject of it,to complete its functions,to promote transaction and guarantee of various interests.Chapterâ…¤Research on expropriation system of rural collective land.Expropriation of collective land is a certain type of forceful action by which the land owner changes from the rural economic organizations to be the state,to some extent as can be confirmed as passive transition.The current land expropriation system of China is shaped step by step under the planned economic system.Along with the construction of socialist market economy,the former compensation and arrangement measures gets more and more unsuitable for the requirements,and unbeneficial for the insurance and protection of rural collective land and farmers' properties and rights.By means of contrasting foreign partial sacrifice theory,property of goal of development,subject,compensation, procedures and judicial protection,this chapter discusses the enlightenments to China.Aiming at the too broad range,low compensation level,defect arrangement policy and disorderly procedure,the author points out that the way to complete China's land development system is to strictly distinguish the public land use from the profitable,to compensate according to the regularities of marketing economic,to broaden the path of arrangement of farmers' livelihood whose land is requisitioned,and to perfect the supervision and relief procedures.Chapterâ…¥Research on the circulating and transferring system of contractual management right of rural collective land. This chapter is the emphasis elaborated by the author.Sub-contract,rent, transferring,share-holding,mortgage of the rights of land contractual management right are elaborated focally,as are started with analysis of policy evolution and stage characteristics of rights,and by research into the permanent rent right system of land of ancient China and the experiences and enlightenments from western and socialist states.And it is moreover put forward that the value orientation of the transferring of land contractual management right is consideration of both efficiency and fairness.As for sub-contract and rent,the author argues that there is no essential difference between them.Since the land contractual management rights have been defined clearly as usufruct,it is unnecessary to define respectively, thereafter the sub-contract is not to be reserved when the relevant regulations is revised.Transferring is the utmost thorough method for transaction of land contract and management,while it is stipulated by law that the offerer has the right of approvement.But it is exactly a kind of right of supervision,not decision.In order to prevent abuse of it,it is necessary to construct a system of constraint and guard,basing on the convention of offerer's approvement and exception of forceful transferring.Though share-holding is a transferring form approved by law,in practice exist some restraint elements,especially there are heated disputation whether land contractual management rights can be capital stock of company.Further discussed are the evolvements of the issues of the rate limitation of share holder,the proportion of monetary capital of company,the handling of land contractual management rights,so hold is that it can be made experiments at selected points to take land as share of company capital while as that of farmers' specialized cooperative.The most controversial issue is the possibility of mortgage of the rights in the practice. Although forbidden by law,people attempt to make a breakthrough strenuously and continuously in actual life.From perspective of perfection of rural finance system,the author supposes that forms of rural credit guarantee should be created,and the mortgage land contract and management rights should be allowed,so to bring about to promote the two essential production elements of land and labor to be disposed more rationally,furthermore to expand rural economic scale and to adjust industry structure.Chapterâ…¦Research on circulating and transferring system of rural collective construction land.As the consequence of the construction and complete of state-owned land market,the land value becomes more realized and used than before,hence the stimulus of desire for interests to transfer the utilization rights of collective construction land. Therefore,the appeal of bringing about of so-called "same land,same right, and same price" is getting stronger and stronger gradually.Through analyzing the realistic causes and challenges,contrasting the modes from the different experiment areas of Huzhou,Wuhu and Canton,it is dearly defined that the principle of transferring and circulating of collective land is to build integrative construction land market of the urban and the rural,to guarantee farmers' property rights of land,to strengthen control upon aggregation and utilization and to ensure linking up properly of the state's land laws and policies.Thus the advices are afterwards made to build transferring and circulating system of collective construction land from four perspectives: perfection of legislation,allocation of land resource,distribution of transferring and circulating interests,and management plus supervision.Chapterâ…§Research on circulating and transferring system of rural collective residential land.The residential land system is the weak link in the popular studies on the current rural land system.After analyzing the relevant legal issues in the residential land management and comparing pros and cons of its transaction,there comes the argument that the irresistible urbanization demands the release of restriction on transferring and circulating of residential land utilization rights,and that the ban-lifting of it benefits to fulfill the principle of equally protection of property rights,not lead to the inevitable consequence of the lost of rural land.And therefore, policy advises are put forward for the release of restriction of residential utilization rights,from the facets of strengthening its property right nature, regulating its planning management,provoking orderly transactions, exploring compensatory use system,and distributing rationally the profits.In this part,the conception and nature of so called "minor property right of house" is also discusses specially,as is tentatively probed to resolve.Conclusion.It sums up the main viewpoints of this thesis,and the creative points are expressed meanwhile,besides of the limitations and weaknesses which are self-criticized during the research.