Land Issues In The View Of Constitutionalism

The topic of land is a hot topic in contemporary society in China, and different subjects explain the problem of land in different ways with their different knowledge hierarchies, research methods and analytical frameworks. This paper studies the problem of land from the angle of land rights, and seeks for the approach to deal with the problem of land in China by revealing the land rights in the framework of constitutional jurisprudence. The introduction of this paper explains the time background of the problem of land introduces the two different problems of land in this background and analyzes the essence of the problem of land further. Chapter One chooses typical constitution texts in the history of constitutionalism from the provisional constitution-making in late Qing Dynasty in China, analyzes the evolution of land systems, configuration modes of land rights and the guarantee methods of land rights in constitutions, especially focuses on the history of the transition of land rights in the several constitutions in P.R.C in order to find historical experiences which are referential to deal with the contemporary problems of land. Chapter Two returns to the land rights in contemporary constitution, explores the different patterns and logics of land rights in cities and rural areas through analyzing the meaning of "Land in the cities is owned by the state" and "Land in the rural areas and suburban is owned by the collectivity" in the constitutional context. Chapter Three first focuses on the land in cities and suburban, pointing out that the boundary of the rights of land in cities is to clarify the power of expropriating land and transforming the problem of land rights in cities into the problem of controlling the power of expropriating land. Then, this chapter focuses on the implement of system of tax distribution, the rising of land-based finance and the alienation of the power of expropriating land. Meanwhile, this chapter differentiates the fields of the power of expropriating land. The system of tax distribution and land-based finance are the external institutional environment of the power of expropriating land, while the three dimensions of the power of expropriating land are its internal mechanism. Finally, this chapter puts forward the way of rebuilding the operation mechanism of the power of expropriating land from the three dimensions of the operation of the power of expropriating land. Chapter Four points out that the function of the rural land determines the forms of the rights of rural lands. As for the peasants who are engaged in agricultural production, the things they need is not abstract land rights but the convenience of cultivation. However, the convenience of cultivation doesn’t depend on single peasant households but a "collectivity" which is above peasant households. So we can transform the abstract problem of rural land into how to identify existing collectivity, find new collectivity or construct real collectivity. Therefore, the focus of this chapter is to analyze the "collectivization" and "passive collectivization", "new collectivity" and "improved collectivity". It is desirable to construct a real collectivity of peasants by cultivating the collectivist spirit of the peasants. This paper chooses the land rights as a focus to study the problem of land; however, it doesn’t discuss the land rights abstractly but explores the logic hidden behind the constitutional land rights in order to grasp the essence of the problem of land in China.