Study On Law System Of Government Intervention In The Rural Land Circulation

Rural land circulation can be classified into two primary categories:the circulation of rural construction land and the circulation of the land contracted by farmers. Many scholars conclude that excessive governmental direct intervention of property right definition and exchange process is the main reason that results in the malfunction of property right system. The realization of economies of scale in operation of land in our country depends on market mechanism, which should not be replaced by governmental intervention. The most effective way to promote the land circulation should be cultivating the market of land use rights and allowing voluntary transfer of the land contracting rights by the farmers so that to expand farmers’scale of operation. However, due to the scarcity of rural land, the most cost-effective and efficient way is to publish governmental guidance price or even to adopt the method of government direct pricing. Governmental intervention is lawful. In the process of rural land circulation, governmental intervention not only has the constitution foundation but also has the economic law basis. Exploring the fundamental reasons for the conflicts between rural land circulation and government intervention and putting forward corresponding countermeasures have important theoretical value and practical significance.This paper firstly examined the constitution foundation for government intervention of rural land circulation. In the theory of constitutionalism, citizens’positive rights are the requirement for the government to seek benefits for the public of rural society. Citizen’s negative rights reflected in the process of rural land circulation are the requirement for free from infringement of their legal rights by the government. The governmental power involved in farmers’positive right issues has the nature of public interest. So the government intervention in rural land circulation activities shall satisfy two criteria: legitimacy and the public interest. For the reason that the power has in its nature the tendency to be expanded or abused, it is always difficult for citizens to realize their positive rights.It is necessary to articulate government’s function, in particular with respect to the circulation of rural land, government’s intervention function through appropriate system design and legislation. It is of the author’s opinion that government’s intervention in the circulation of rural land falls in the coverage of economic law. The first reason is that, in the perspective of regulated object, the process of government’s regulation of the circulation of rural land in the course of development of legal relationship with respect to the circulation of rural land is in conformity with the object covered by economic law. The second reason is that, in the perspective of regulated contents, the circulation of rural land is among equal parties, that is, legal action for transfer or lease of land or investment with land conducted by equal market participants. Due to the special nature of rural land resources, the rights and obligation relationship arising from government’s intervention in the circulation of rural land (such as micro regulation) is in conformity with the requirement of economic law on regulated contents. The third reason is that, in the perspective of value orientation, government’s intervention in the circulation of rural land aims to pursue social common interest and substantive fairness.The theoretic system created by the school of economic law national regulation, whose core is about "three defects of the market, three way of state regulation and three components of economic law", reveals the essence of the economic law. Its findings as to the relationship between the state and market have practical guiding significance on the legal circulation of rural land resources in China during the transition period. In the meantime, the state’s regulation is not omnipotent. The analysis in this paper on government’s intervention in the circulation of rural land is based on the doctrine that government intervention right is from the constitutional authorization. Because of synchronous evolution of law, the scope, contents, methods and procedures of governmental intervention in rural land circulation as well as the assumption of the legal liabilities arising therefrom shall be stipulated in and regulated by the law.The paper emphasizes in particular the difference between the rural land circulation driven by the administrative power and the rural land circulation regulated by the government, which, in essence, is of the difference between the administrative power and the state’s regulatory power. State’s regulation power differs in its nature from the administrative power. The former is a kind of economic power, while the latter does no always involve in economy. This paper analyzes the definition of governmental function existed in current legislative pattern in following four aspects:firstly, the government is the supplier of the system with respect to the circulation of rural land, secondly, local governments exercise the duties of agents based on the authorization and entrustment. thirdly, the government serves the role of public service provider to ensure the safety of the transaction of the circulation of rural land. and fourthly, the government plays the role of land macro regulator.The paper also analyzes the goals of governmental intervention in the circulation of rural land. There are three important policy goals in the circulation of rural land:the first is to maintain the stability of family contracting responsibility system and to strengthen collective economy. The second is to control the usage of the land and to ensure food national security. The third is to enhance the economies of scale in operation. Such goals have the features of direction, motivation and multi-level as well as the features of time limitation and feasibility. The achievement of the goals in the circulation of rural land is the result of joint efforts of the decision making level, execution level and operation level and the result of combining forces of the central government, local government and the farmers. Consistent with transactional legal characteristics are able to promote the transaction prosperous, namely, the rural land circulation legal target mode with property right nature that unify the equity and efficiency together. For example, it is suggested to establish a kind of land right that can be freely circulated under the law and available for transaction in the market, to establish an effective circulation intermediary service institution and information exchange platform and to perfect the existing rural land registration system and so on.It is necessary to set the value of governmental intervention in rural land circulation. Firstly, freedom is a constitutional right. According to the constitution law, property law, land administration law and other governmental regulations, in the process of circulation of rural land, the farmers as parties to the circulation and as mind autonomous bodies are legally equal and their circulation of rural land must be voluntary rather than under compulsion. It should be noted that governmental intervention in rural land circulation does not mean the substitution by the government for the individual to engage in the rural land circulation activities, to the contrary, the purpose of governmental regulation of the circulation of rural land is to promote the realization of the freedom of the circulation activities. Freedom is the fundamental legal value of governmental intervention in the circulation of rural land. Secondly, the order value for governmental intervention in the circulation of rural land is very import. In the process of rural land use right circulation, registration and public announcement system is a good way for the parties to the transaction to reduce the transaction costs or the way to maintain the rural land transaction safety and order. The value of the order is embodied in the strengthening the willingness to actively make the registration in the course of the transaction and the increase of available benefits post registration so that to improve the order of the land transaction, because that benefits is subject to order and safety is subject to order, it is true for the society as a whole.It is necessary to set the principle for governmental intervention in rural land circulation. Firstly, the author concludes in this paper that existing land administrative department exercises both the administration power and the intervention power over the land market. The joint effect of the two powers results in over intervention in current rural land market and hindrance to normal development of rural land circulation market. Therefore, bold reformation must be made to separate the land market supervision and administration committee exercising rural land circulation regulatory power from the administration institution so that the principle of limiting governmental power can be truly realized. Secondly, to emphasize the principle of fairness is necessitated by the process toward legalization of governmental intervention of market economy. The reason is that the legal basis for governmental intervention in market economy is role of regulator played by the government rather than state ownership system. In exercising its regulatory power, the government shall treat all the participants to the rural land market equally. The government shall neither show bias in rural land and the nature of rural land nor discriminate between farmers and the enterprises that need the circulated land. Thirdly, governmental intervention behavior shall follow the principle of efficiency. Efficiency can be achieved through free circulation in the market. Because of this, the third plenary meeting of seventeenth communist party committee called for the establishment of rural land circulation system. However, the land circulation is merely the means to achieve efficiency, it is not the end itself. The land circulation system does not necessarily bring in agricultural land use efficiency. The above factors dictate the limitation and finite of the market mechanism in rural land utilization system. Fourthly, government intervention behavior should abide by the principle of statutory. Not only should the specific administrative act be lawful but also the abstract administrative act. The government’s directive behavior shall also be lawful. Fifthly, in the process of government intervention in rural land circulation, it is most likely that the regulation power will be in conflicts with human rights. In such case, if the two cannot be satisfied at the same time, the human rights shall take precedence over the regulatory power.This paper made analysis on the function and contents of government intervention in rural land circulation. Firstly, governmental regulation of rural land circulation is not a direct control of the land circulation. Governmental intervention in rural land circulation shall not be regarded as macro regulation but micro supervision and regulation of the land market by the government for the following reasons:(1) directly governmental control is often become the commodity purchasable by some special interest groups or classes and the protection umbrella for obtain monopolistic interests.(2) direct governmental control always evolves into substitution for market mechanism by administrative power and substitution for market selection by governmental decision, which result in restriction of competition, stifling of market vigor and arbitrary infringement of the rights of market participants.(3) direct governmental control makes very hard to achieve anticipated goal. The government’s regulation is always counterproductive, even has negative effect.(4) direct government control create turf which the regulatory agencies will defend at all costs.(5) it is very difficult to effectively supervise the regulatory agencies. The greater is the government direct control, the more power the government will have. More power will result in more difficulty in supervision of government. Secondly, governmental regulation over the rural land circulation is micro regulation rather than macro regulation over the land market. In the process of rural land circulation, the measures adopted by the government in regulation and supervision of the market are different. The supervision and administration over the rural land circulation market involves micro level to which the economic, administrative and legal measures are applicable. Thirdly, the scale, mode, and speed of the circulation of rural land have changed greatly than previously. With respect to such new changes as well as the new and old problems arising from circulation of rural land, the governments at all levels should have clear awareness and resolve them promptly:(1) the government shall act as the market regulator to supervise the land operator by means of the law and regulation relating the circulation of rural land.(2) the government shall act as the social coordinator to intervene the circulation of rural land through payment transfer, taxation and other measures, establish rural social security system related to the circulation of rural land and adjust the actual income of different level areas and classes to achieve the stability and harmony of the rural society under the market economy.(3) the government shall act as the public service provider by utilizing its great fiscal power and powerful policy measures and through development and research, direct investment, payment transfer and other measures to correctly resolve the labor force problem arising from rural land circulation, the problem of supporting rural dominant industry and the problem of upgrading rural industry structure and to guide proper circulation of land resources.Government intervention in rural land circulation should follow certain procedures. Firstly, legal procedures are roadmap for government intervention in rural land circulation. In the course of governmental regulation of rural land circulation, it is impossible for the parties to the circulation, especially the farmers, to have recourse to a fixed standard. The legal procedures for government intervention are the basic symbolic mark of a pure procedural justice. It also can provide a solution to a number of conflicts arising from formation of governmental procedure system on the condition that the procedures for rural land circulation are strictly implemented. Secondly, the combination of regulation procedures and countermeasure procedures should be optimized for the following reasons:(1) emphasis shall be given to the exertion of the function of the countermeasures of the parties to the rural land circulation while the predominant position of governmental regulation procedures is guaranteed. The countermeasure procedure is significant in avoiding the failure of regulation and improving the efficiency of regulation.(2) as to regulation procedures, the proportion of binding procedures should be increased. With respect to the regulation act having material effect on the rights and interests of the parties to the rural land circulation, strict procedures must be set up. The content of the regulation procedures must be clear as possible in order to ensure its operability.(3) as to countermeasure procedure, arbitrary or selective countermeasure procedures shall be increased in order to promote the parties to the rural land circulation to make countermeasures. Thirdly, the adoption of informal procedures or joint action informal procedures will result in reduction in law enforcement costs, direct the parties to the rural land circulation to engage in lawful conduct and decrease the non-cooperative game play between the governmental regulation body and the parties to the rural land circulation.Government shall undertake legal liability for its improper intervention. In the course of the circulation of rural land, any act that is inconsistent with the goals set by the law for such acts can be deemed as illegal regulation act. Such acts can be divided into two types: one is the illegal acts committed by the staff of the land regulatory body.Another is the illegal acts made by the specific regulatory body (such as the local government) that reflects the desire of the regulatory body rather than its staff in charge of such act. The features of liability provisions of China’s land law are as follows:one is that the regulatory body is set as subject when describing the illegal acts of the regulatory body. The features of the legal liability of the regulatory body are as follows:first, the parties liable include both the regulatory body and individuals. Second, the regulatory body undertakes the penalty of fine and so on, while the persons directly responsible for or in charge of undertake the criminal or administrative liabilities. The regulatory body undertakes primarily the administrative liabilities such as such as warning, demerit, demotion, dismissal, demotion, dismissal and so on. The form of liabilities should be reformed.By combining the theoretical analysis with case analysis, the following conclusions are drawn in this paper:(1) the exercise of governmental intervention power must be authorized by law. Government intervention in the circulation of rural land is in conformity with the social nature of economic law. In contrast with the state intervention theory, the government regulation power theory is more progressive, up-to-date, and generally applicable and innovative.(2) the government intervention in rural land circulation must comply with the principle of limiting government powers as well as the principles of statutory, efficiency, fairness and respect for human rights. The value of government intervention in the circulation of rural land is embodied in five aspects:freedom, order, justice, safety and ethics.(3) the circulation of rural land is a kind of behavior market economy rather than an administrative act. In the process of rural land circulation, the government regulation is not unnecessary. In the process of change of system, importance should be attached to the application of the government regulation and the legalization of the government regulation function.(4) from the perspective of the entity, the effective circulation of rural land not only requires the dominance of regulation procedures but also the coordination of countermeasure procedures. The legal procedure of governmental intervention is the basic mark of the pure procedural justice.(5) the legal liabilities of the governmental regulatory body regulation include administrative, criminal and economic liabilities. The form of legal liabilities must be reformed to include resignation for cause system.(6) the existing land supervision and administration institutions exercises administrative supervision and regulation power, while the land market supervision and administration institutions exercise the state regulatory power. State regulatory power has both the feature of public power and the feature of private power. It is concluded that the state land resources administration authority should conduct the function of land administration, and land market supervision and administration committee should be established as the regulatory body to exercise the economic function of land market supervision and administration.