| The "CPC Central Committee on rural reform, development and a number of major decisions" ("the decision") which was adopted by the Third Plenum of the 17th CPC Central Committee, opened the prelude to a deep reform of rural China, and declared the starting point of spiral of China’s reform after thirty years. This reform in rural China is still dependent on the strategy that encircling the cities from rural areas, and still focus on the land system of rural China and rights and interests of the farmers. The difference is that we have to deepen the reform, and the reform objectives have transited from eradicating poverty and meeting people’s basic material needs into changing urban and rural, and promoting the round social development. In rural reform, land issues affect the whole situation, and is the core of "Problems about Agriculture, Rural areas and Peasantry". Now the focus of issues of rural land is the legislation of collective land transference. The current "Land Management Law "and other relevant laws have many shortcomings, from the rule of law to legislative technology. Collective land transference is a huge organic associated system. Current law is only rough to speak, simple to do, yet to be improved. The principles, procedure mechanisms and remedy systems, that collective land transference should have, are not reflected or have not been fully reflected in the legislation. It is very necessary to establish a legal system of collective land transference. We can draw up "Collective Land Transference Law", then draft "Law of Public Construction Land Expropriation Procedure" and "Government Consignment Law of Management Construction Land", and at the same time modify the existing "Real Right Law", "The Law of Land Contract in Rural Areas", "Urban and Rural Planning Law" and relevant provisions of other laws. All of these laws form the legal system of collective land transference. The paper, taking Constitution as the viewpoint, discusses the existing system model of collective land transference and its problems through historical analysis, normative analysis, value analysis and other methods, and proposes the principles, procedures and remedies that collective land transference should follow.Chapter I:Introduction. Issues of Rural Collective Land transference have a direct relationship with China’s development and farmers’ living condition. Collective land system is an important constitutional system. The Constitution stipulates both collective land and state land belong to the land’s socialist public ownership, but at the same time provides " The state may, in the public interest, requisition or expropriate land for its use and give compensation in accordance with the law", that means the state could requisition collective land to be state land for the public interest’s needs. This creates a basic contradiction in the collective land system:only the state land can represent and reflect the public interest, and the existence of collective land can affect the realization of public interest, that conflicts with the public nature of collective land. The basic contradiction of collective land directly affects the land transference, and because it is from the Constitution provisions, so it is necessary to research in the constitutional viewpoint. Legislation of collective land transference develops and enriches the practice of the Constitution, and protects economic rights of farmers. The right protection of collective land transference is an important component of the human rights Action Plan, and the Collective Land transference reform is an important part of social reform. Therefore, the Legislation of collective land transference is a significant realistic project of Chinese constitutional research.Chapter II:The form and obstacles of collective land transference in current legislation. In our country, land is divided into state land and collective land. Collective land can be requisitioned for the state land to form collective land transference on the ownership level. In addition, collective land transference also includes transference of contracted management right, transference of right to use construction land, house sites transference and other types on quasi real right level. Because according to current law, some transference forms such as transference of contracted management right already have characteristic of real right, that can not be subsumed real right concept in the theoretical sense, so be called "quasi real right". Now two kinds of transference modes exist problems. First, principles are uncertain. Due to this, normative content of transference lacks logical unity, the realization of the purpose of collective land transference is affected, and legality and legitimacy of public power and collective organization’s behavior also can not be judged. Second, procedures are improper. Their content, defined mechanically, has little room for communication and consultation, also lacks the scale for forecast and restriction. Procedural provisions are few, have small participable range, and are short of neutrality, authority, established power and coercive power. Third, because of unfavorable remedy, realization of rights and the dignity are not well protected. The allocation of remedy mechanism is imbalance. Relying on administrative measures too much weakens ultimate judicial remedy, which is one of the principles of the rule of law. Relevant legislation lacks scientific planning and idea of the rule of law in modern times, has multiple leadership and complex settings. It is nonstandard, even can not find laws to abide by, and has insufficient supportability, consultation and autonomy.ChapterⅢ:The principles of collective land transference. The principles of collective land transference is an important part of the legislation of collective land transference, and is the value basis and legal sources of transference procedure, regulation and remedy mechanism. In this paper, inviolability of collective land ownership is the basic premise of all behaviors of collective land transference to occur and the first principle that must be followed, including the basic requirements of collective right to living and development. Without respecting for and protecting the collective land ownership, collective land system will be dying out and naturally collective land transference will not exist. The principle of equal protection mainly restricts constitutors of regulations and policies and collective organizations. When they draw up laws and regulations or make policies and programs, the legislature, the executive and collective organization are demanded to equally protect counterpart involved. People with same situation should be treated equally, and people with different situation should be treated differently. Not only privilege and discrimination are been against, but also the absolute egalitarianism is. The principle of public interest, under the premise of implementing the principles of due procedure and equal protection, is restrictions of the right of collective land transference by public power for the purpose of realizing interest of the whole society. Significance of the principle of due procedure, that is the manner, method, process, space, time limit and other things of collective land transference are made to be clear through reasonable procedures, so as to regulate administrative power, collective autonomy, and exercise of the rights of dominant party, protect the rights and interests of vulnerable citizens, and ultimately improve the rationality and acceptability of the results. The importance of the principle of democratic consultation is much emphasized, that is closely related to the development of the socialist market economy and people’s gradual understanding to the dignity and human rights. The principle of democratic consultation can provide equality, mutual trust, and transaction security, which are necessary to market economy, meet people’s needs for personal dignity and protection of human rights from the heart and spirit, and are an important extension that socialist democracy and political civilization reflect in collective land transference.ChapterⅣ:Realization of collective land transference. The legislation of collective land transference takes the procedure as the principal part of regulation. Determining the subject, process, order, manner, method and time limit through the procedure is the necessary way of achieving collective land transference. According to transference characteristics of collective agricultural land, collective construction land, public construction land and management construction land, the author proposes that requisition system should be restored, the scope of land requisition should be narrowed, and the requisition procedure of public construction land should be constructed on the basis of distinguishing public construction land from management construction land. In the requisition procedure of public construction land, only when it is necessary to public construction Land, rural collective land should be requisitioned in accordance with "public interest" clause of the constitution. Correspondingly, neither requisition System nor equal transference of collective construction land and state construction land is applicable to management construction land. Constructing government consignment procedure of management construction land is an ideal choice, which could give good play to market rules, competition rules and responsibilities of government supervision, promote transference of the right to use rural land, establish the market of construction land that unifying urban and rural areas, and make rural construction land and state land enjoy equal rights and interests. As far as transference of contracted management right is concerned, the paper argues that we should improve transference procedures of contracted management right of collective agricultural land based on the existing systems and mechanisms. Since the rural collective construction land still hasn’t the condition and necessity of nationalization, this paper presents a view of limited transference and building the transference procedure of collective construction land.Chapter V:The remedy of collective land transference. The remedy of collective land transference is a right, a way to be relieved, and also a legal system for timely and impartially maintaining the legitimate rights and interests of the right holders of collective land transference or the interested parties. Starting with infringement of the right, we should know the nature and classification of the infringed right, so as to deeply understand the remedy system and put forward the newer construction ideas. Infringement of the rights of collective land transference can be divided into two main types:infringement of the rights between equal entities and infringement of the rights in the administrative regulation. Infringement of the rights between equal entities includes infringement of the contracted management right of collective agricultural land, infringement of the income apportionment right of collective land transference, infringement of the building right of house sites, infringement of the transference right of collective construction land, and infringement of the contracted management right. Infringement of the rights in the administrative regulation includes infringement of the rights caused by planning control, collective land adjustment, non-market intervention to the contracted management right, examination and approval to the farmers’ residential sites, the state requisition, and administrative registration of collective land. The paper analyzes defects in the existing system of remedy law, and proposes the remedy system of collective land transference should be systematically perfected from four aspects, including private remedy, administrative remedy, judicial remedy and the state compensation. |
PDF Full Text Request