Research On The Legal System Of Land Expropriation

Land is equally important for each country in the world, since it is the wellspring of wealth, as well as the source of all productions and lives. Land expropriation is a kind of administrative act to obtain the land for the public welfare by state compulsion, which makes up the market failure by using the state administrative power to allocate the land resource. It involves the conflicts and balances between the states’power and the owners’ right, as well as public interests and private interests; therefore, the legislative regulation of land expropriation is emphasized by every country. The institution of land expropriation is a comprehensive legal system generally carried out by all the countries in the world, with universality and intercommunity in some extent. Throughout the whole course of history, there are common characteristics among the legal systems of land expropriation of different countries, which include public purposes, equitable compensation, due procedure and various relieves; however, in a certain period of history, the institutions of land expropriation were deeply influenced by politics, economy and social system at that time. In China, in view of the special land system and the transition from planned economy to market orientation, the land expropriation, with its own particularities, is an act of state to obtain the collective land ownership in a mandatory way and make relevant compensations for the sake of public interests. For the peasants in China, the land is the source of production and subsistence means, which also functions as a social policy to guarantee employment, social insurance, social security, and so on. For a country, land expropriation is not only a method to allocate land resources, protect public interests and promote social welfare, but also a restraint to private property right. The history of Chinese revolution and construction fully demonstrated that, the fundamental problem of China is the peasant problem, while the peasant problem is the land problem. As China is during a rapid urbanization and industrialization period, the limitation of the stock of state-owned land certainly causes collecting collective-owned land in a large amount. The contradictions and conflicts of interest are more and more frequent and sharp in land expropriation, with the wakening of right concept. If we fail to efficiently adjust the current system of land expropriation, the process of urbanization and industrialization would be blocked and the peasants’interests and social security would be jeopardized. Why do the land expropriation systems, which have already been mature and efficient in foreign countries, play a weak role in China? Why cannot we use the experiences of land expropriation from other countries for reference? Since all of the above are rooted from the particular policy background of China and the deep contradictions in the transition period, in which the land expropriation is implemented. The institutional revolution of land expropriation is a gradual process which cannot be accomplished in one move. Throughout the process of urbanization and industrialization, the realistic contradictions and conflicts are happening all the time. But it does not mean that we could only hold a passive attitude and do nothing. On the basis of Marxist materialist dialectics, the article adopts the interest theory and interest analysis, using the methods of economic analysis, normative analysis and empirical analysis of law. From the perspective of interests and interest relationships, the article also analyzes a basic thread, that is, interests-interest relationships-interest conflicts-legal path-interest balance, and applies this thought to the process of land expropriation, so as to seek out corresponding solutions to the realistic problems, on the premise that the outer environment and inner institution of the land expropriation of China have been fully comprehended.Besides preface and concluding remarks, the article is divided into five chapters, with over one hundred and fifty thousand words in total.Chapter One:Theoretical analysis on the interest conflict and interest balance in land expropriation.This chapter aims at laying a theoretical foundation and providing an analytical framework for the whole article. It includes the analysis of the general theory regarding land expropriation, interest conflict and interest balance. Land expropriation is a kind of method to obtain the land for public welfare by coercive force of state, possessing the characteristics of state in subject, public in purpose, coercive in enforcement and transferred and paid in land right. The constitutive elements of land expropriation include public purpose, justice procedure, proper compensation and eligible subject. The act of land expropriation has dual character of administrative act and civil act. It is ethically right, economically rational and nomologically legitimate to expropriate the land and make corresponding compensation. The process of land expropriation is not only an interest game, but also a mechanism for the government to allocate land resource and provide public products, therefore, the confirmation of the land property right is extremely important in the expropriation. The interests originate from the needs for socialization, and belong to the category of social relationships in nature, however, the interests in law refer to the interests protected by law and realized by the form of right in legal provisions. Interest conflicts are special manifestations of social conflicts based on interests, which result from the limitation of the resource, the ability variance of the subjects, and the inequality of the social system. In law, it refers to imbalance and inadequacy of interests among different interest subjects and a consequent status of inequality and negative efficiency, which is manifested by legally qualified subjects to violate specific laws and regulations. Balance is equilibrium. Interest balance is a kind of status that the interests of different subjects are relatively coexistent and equipollent in certain interest pattern and system. Ruling of law is the only way to achieve an interest balance, realized by the means of legislation, execution and jurisdiction. Interest contradictions and conflicts in the process of land expropriation can be efficiently solved only by a legal approach.Chapter Two:The main manifestation and the background cause of the interest conflicts in land expropriation.This chapter describes the internal structure of the interest relationships and interest contradictions in land expropriation, and the external macro system and policy background as well, through analyzing interest conflicts and their causes in the expropriation. The land expropriation of China involves central government, local governments, rural collective economic organizations and vast peasants; with different interest demands in the expropriation and on the basis of their own interests, they form interest relationships of four levels:the state and the rural collective economic organizations, the central government and the local ones, the rural collective economic organizations and the peasants, and the local governments and the land users. The interest relationships among different subjects are consistent and contradictory as well. In land expropriation, the contradiction between public interests and private interests is most important and general in all. The public interests are for all members or the majority of the social community with the features of publicity, universality, objectivity, non-excludability and so on, while the private interests are the sum of all kinds of needs for individual survival and development. They are in dialectical unity. In land expropriation, the conflicts between public interests and private interests are reflected by the conflicts among land expropriation power of the state, collective land ownership and rural land contractual management right, and by the interest conflicts in the compensation for expropriation. The interest conflicts between rural collective economic organization and individual peasant, and central government and local ones are also included in the expropriation, which manifest themselves as specific conflicts between power and power, power and right, and right and right. The institutional and policy background of all the conflicts above is state and collective ownership based on the public ownership of land, urban-rural segmentation in land use, land finance under the condition of tax federalism, and the demands for urbanization, industrialization, marketization and legalization in the transition of society and economic system. Understanding all the backgrounds is the starting point and efficient way to know the particularity of the land expropriation system of China and to solve the realistic problems in the expropriation.Chapter Three:The content of the land expropriation legislation and existing problems. By outlining the current legislation of land expropriation, this chapter introduces the Chinese legal system of land expropriation comprehensively and systematically, and then analyzes the main problems of the system. The current system of land expropriation was gradually established after the founding of the People’s Republic, whose development was dually influenced by planned economic system and market economic system. The current legal framework and regulation system of land expropriation is constituted by relevant legal provisions in Constitution, Property Law and Land Administration Law and other regulatory documents, characterized by scattered legislation, particular background, complicated content and policy-based orientation. Although the purpose of land expropriation is to achieve and protect public interests, relevant legislations show ambiguity in this point. It is the principle that compensation should be made in expropriating land according to the original purposes of the land expropriated. The specific standards are regulated in the Land Administration Law. The compensation standards in policy-based norm are "standard of unified annual production" and "standard of integrated value of the land expropriated". After the plan for land compensation and resettlement fees is finalized, the process of land expropriation involves many steps, such as application, approval, announcement, signature of agreement, announcement, registration, performance of agreement and land supply. In legislative mode, the legislation of land expropriation is in decentralization and contradiction, which affects the integrity of regulation and the unity of law; in the compensation for land expropriation, the basic principle is missing and the standards are low-level and confused; in the process of land expropriation, peasants’right to know, right to participate, right to dissent, right to appeal and so on are absent, which makes the whole procedure lack of legitimacy; in the dispute settlement of land expropriation, solving methods are so limited that many disputes cannot be dealt with. The deficiencies in land expropriation institution are systematic, mirroring traditional mechanisms and concepts. Chapter Four:The value and principle of the interest balance in land expropriation.This chapter seeks for value assessment standards and principles that should be followed, so as to improve the land expropriation system of China. If the system cannot be adjusted in time, relevant interest conflicts would not be solved and consequently, the function of land expropriation system would be weakened. The interest conflicts in land expropriation should be regulated and solved by law in order to achieve an interest balance. To judge whether interest balance is achieved by the legislation in land expropriation, some value criteria are required, that is, efficiency and fairness. To realize interest balance in land expropriation is to achieve equilibrium among public interests, collective interests and peasants’ private interests, and to unify the economic benefits, social benefits and ecological benefits. The equity in the balance requires realizing the equities between the form and the substance, the opportunity and the result, the present and the future, and the horizontal and the vertical. The efficiency and fairness in land expropriation is dialectical and unified. The principles of sustainable development, public interest first, proportionality, just compensation and due process should be carried out in reaching the interest balance in land expropriation.Chapter Five:Rational construction of the legal mechanism to achieve the interest balance in land expropriation.This chapter puts forward the rational suggestions and specific designs for constructing legal mechanism of the interest balance in land expropriation. Firstly, it requires different but correlative legal mechanisms to coordinate organically in order to perfect the legal system of land expropriation of China. Concentrated legislation mode should be chosen in the lawmaking, and then, a uniform land expropriation law should be made by integrating and coordinating current legislations and policies. In addition, we should build up judging mechanism of public interests by learning from the experiences of other countries. Secondly, the compensation principle based on fair market value should be established. We should gradually form a compensation standard on the basis of the market value of the land expropriated in a market orientation. The peasants’ relevant rights should be protected by practical investigation, announcement, hearing and other procedures. Thirdly, diversified mechanisms should be formed to resolve the disputes in land expropriation. The range covers the disputes regarding public purposes, expropriating process, compensation and resettlement, and allocation of the fees for compensation and resettlement. Lastly, the relief system of land expropriation should be constructed and improved. The administrative relief, which includes administrative mediation and administrative reconsideration, should be combined with the judicial relief, which is divided into administrative litigation and civil litigation. Consequently, an unblocked and efficient, fair and just network is truly built up to solve the interest disputes in land expropriation.