Study On Land Use Control Legal System

Guan Zhong, a famous politician in Spring and Autumn Period, has said that, "Land is the fundamentality of governance." Land-use regulation and policy have profound influence on social economy development. In order to deal with the market failure and allocate land resources rationally and effectively, land use control system is generally accepted by most of the countries as a kind of basic public management method, which assumes a risk of allowing governmental intervention into private ownership or use rights. Under Chinese system of public land ownership, Land Use Control legal system has another important function of initially defining land use rights as basic rights for the land market transaction. It is the reason that the establishment of Land Use Control legal system in China is regarded as a great innovation. However, ten years after the first issue, with the steps market transaction opening to land property, some phenomena emerge such as abandoning cultivated land, small property room, lease of land in fraud of law of land eminent domain, which uncovered the severe confliction between the land interests and land-use control regulation behind the battle of current interest groups in China. According to the third Plenary Session of the 17th Communist Party of China Central Committee, the central government takes the following tasks on its schedule:innovation of land eminent domain system, gradually limitation of land eminent domain, restriction of rural land contractual management right, preservation of basic farmland. These new movements would influence the position of Land Use Control legal system among the whole state-owned land system, its legitimate base, its value and function. It is urgent to find and correct the defects in the current system. This paper is trying to clarify several questions:how to interpret the legitimate base of Land Use Control legal system under the free market rule to allocate land resources? What’the essence and function for Land Use Control legal system compatible with free market? What’s the confliction between our current Land Use Control legal system and the land market? Where does the confliction come from? How to design a new and compatible legal system in China? In order to answer these questions, this paper is divided into six parts to discuss the details.PartⅠ, Interpretation of basic concepts. This part defines the concepts of land, land use and land use control. Moreover, it explains the relationship among land use control, land use planning and land eminent domain. Land use control is considered as summation of land use classification, land use sector and approval of land use shifting. On the other hand, land use control is as important as land eminent domain. The former one should be applied as a routine method to regulate land property, while land eminent domain is only a kind of auxiliary instrument or the last card.PartⅡ, Legitimate base of Land Use Control legal system. This part demonstrates the legitimate base from the perspective of economics, law and constitutionalism. From the view of regulation economics, considering the relationship between the government and the market, Land Use Control legal system could conquer the market failure with economic rationality and extend the government’s limitation. From the expansion of administrative power stimulated by socialization of land ownership and the environmental problems, Land Use Control legal system is granted rights and power from the expansion. From the justification, logic and principle for restriction of constitutional basic rights, Land Use Control legal system gains its constitutionality and draws its bounds.PartⅢ, The value and function of Land Use Control legal system. This part analyzes the content and relation of order, efficiency and justice from the standpoints of value conflicts and conflicts equity aroused by resource shortage. The author claims to abandon the idea of "black or white" and advocates achieving efficiency and justice by order construction, i.e. time and space order construction for maximum of social welfare and Pareto optimal solution for potential land use. Moreover, this part also discusses that Land Use Control legal system should have the following five functions of clarity of property rights, message conveyance, impetus, optimal allocation of resource and interests integration, which could stimulate and coordinate a well running market.Part IV, The development of Land Use Control legal system abroad. This part takes legislation of US, UK, Japan, German and Taiwan Area as typical examples for research work. From combing their development histories and characters, comparing their difference from their politics, law and culture background, and analyzing their common tendency in control system, control methods and control tasks, the author wants to use these study achievements as reference for legislation in China. Part V, Chinese logic in Land Use Control legal system. This part digs generation routs, current character and logical paradox of Chinese Land Use Control legal system. The characters of Chinese Land Use Control legal system are divided into four aspects:(1) the basic aim of fixing cultivated farmland protection;(2) the basic logic rule of local government’s monopoly of land market and central government’s indirectly regulation; (3) the basic structure of urban area and rural area being regulated differently; (4) the basic method of planning intervention by command. Therefore, land market in China still relies on planning regulation by government and it plays the role of management rather than resource allocation. Under such circumstances, Chinese Land Use Control legal system is designed for restricting local government’s power instead of regulating land market, and its general functions of clarity of property rights, impetus and balancing interests are ignored. With the development of land market and increasing respect of civil rights, the phenomena of abandoning cultivated land, small property room and lease of land in fraud of law of land eminent domain become popular, which discloses the paradox of constitutionality, justice and validity problems of current system. It is time to rebuild the Chinese Land Use Control legal system.Part VI, Rebuilding Land Use Control legal system in transforming society. This part provides some innovation details for Chinese Land Use Control legal system. The author considers that the difficulty or focus for system improvement in the country experiencing free market transforming is how to shift economy function, and legislation is a key point to rebuild the economy function. Therefore, we should recheck the content of control power. Till now, the current land use control power faces the problems of ambiguous location, unreasonable discretion, unscientific power structure and running logic disorder. It is imminent to modify the regulation to resolve the above problems. This paper tries to draft a market-oriented, routine and elementary regulation and this expectation will be fulfilled from three perspectives including typological analysis, sector control and development permission. As to the typological analysis, land use should be fixed by legislation and divided into function class, form class, profits class, rights class and product capacity class, which are the prerequisite conditions for land use control. In the meantime, based on sector control with meaning of space control and regulation guide control, and based on land development license with intent of discretion guide and free market guide, a development permission license system is put forward in this paper. As to the defects of "principled sector", the suggestion includes land use sector set by law, strengthening function influence, modifying sector system and control principles. As to the administrative approval system for agricultural land shifting use application and construction land zoning, the defects may be cured by new design of rules.