The Research On The Circulation System Of Collective Constructional Land Use Right

Presently, the usufruct collective constructional land system is one of the important system in the property law.The reformation and improvement of this system is a significant problem in develop the economic to promote the right equality between the peasants and the citizens and to let the peasants to enjoy the capital gains.For the purposes to protect the farmland and reduce the concussion to the market of the estate of the realm,the existing law is close confinement to the circulation of the collective construction land use rights.It makes the value of the collective construction land not distinctness and leads the loss to the members of the collective.This limitation is not only a legal discrimination to the collective construction, but also caused the inefficiency usage in collective land, and it has become an important factor of causing a sharp social conflicts and mass incidents.In order to realize the coordinated development of national, collective and individual, must cancel unreasonable restrictions on the collective construction land, let the collective organization and its members enjoy as land owners rights.This article take the civil law theory of equality and the encourage trading principle as the starting point.Take the reality and historical development of the collective construction land use rights system and its reform measures and combined with knowledge and achievement of related disciplines.Put out the point of view that give the collective construction land a complete property rights and allowing it to transfer is the only way to resolve the dilemma and breakthrough problem.Focus on the discussing about the establishment and improvement on the scope of the object,the rights and obligations of the subject and the relevant transaction specification and supporting system.Introduction Issue,scope,method Background,research value,practice significance,the existing research methods and results and the elaboration on the topic structure.Chapter one The theoretical principle of the circulation of collective construction To investigate the land rights and land transfer and the concept and characteristics of the collective construction land use rights and land circulation legal basis.Moreover compares the land circulation system of the main developed countries and the separation of ownership theory, the dialectical relationship between the equal protection of property and property legal theory and the theory of land development rights and land circulation are discussed through combination of China’s national conditions.In order to solve fundamental problems for China to establish land use rights transfer system of collective construction.Chapter two Analysis about transfer of the right of collective construction land use present situation From the feudal landlords to the peasants then to farmers collectives, finally we form the the one and only the collective land system over the world.This system is more of a expediency system based on the political system changes mode, rather than a rational design after a rigorous logical discussion.Its defect lead to the problem in the running of the collective construction land use rights system.In view of system, although our country set a strictly limit on then transfer of the collective construction land use rights, the matter that the collective construction land range a large scale of construction land has become a reality.The limitation of the transfer is becoming a obstruction of the economic development and social stability.The main causes leading to this dilemma: the transfer of collective construction land legislation is lags behind, the lack of supporting system; absence of subject; circulation objects is indistinct, power restriction; the transfer market system is not complete, low efficiency etc.To the future development of collective construction land use rights, there’s two way to choose,one is to realized the collective construction land use rights as a complete real right in civil law progressively, the other one is to make some fine-tuning on the base of the existing collective construction land use right. This problem is not only the government and the legislature must face and solve, but also the academic theory area must pay attention to.State ownership and collective ownership only means that each are belonging to different economic composition.The collective construction land use right is derived from the ownership of land use right,allowing the collective construction land flow directly into the market is a basic requirement in the civil law principle of equality of rights, also the only way to solve the dilemma problem of circulation and transfer of collective construction land.Chapter three Objective research on the transfer of collective construction land use rightsOn the private law, through the disposition of rights, to maximize the value of the transaction object, to maximize the interests of obligee, and turn material resources to good account. As the objects of the collective construction land use rights, land circulation has been strictly controlled by law, it is a reasonable way of public intervention in the private law. Compared with the agricultural land, land for construction has a higher economic benefit, therefore, the biggest danger of allowing the collective construction land circulation is the collective organization will turn the cultivated land and unused land into construction land.There’s two principles:the regulation of land use and planning management are the important feature as the transfer object which is different from the other object of collective construction land use right.Collective construction land of the object can be divided into three categories:business collective construction land, non business collective construction land and the residential category of collective construction land.Circulation of three different types of objects not only should follow the common principle but also the circulation of management of collective construction land should follow the principle of unified market;the non operating collective construction land is similar to the "common property" in civil law, the circulation shall be subject to more stringent restrictions;the homestead circulation limit should be according to different circumstances and different main distinction.Chapter four Research on the transfer of the subject of collective construction land use right The features of our country’s rural land ownership are community and public besides the interest of the subject is injured.Moreover the relationship between the collective and its members is not clear.Collective construction land use rights is separate from the collective land ownership, its main system and the system of collective land ownership have similarities,but there’s still some problems in the legislation.Circulation of collective construction land use rights is divided into preliminary transfer and secondary transfer.In the preliminary transfer, subjects on both sides are the collective construction land owner and user.The preliminary transfer is reflect the transfer relationship between the owner and the user. Secondary transfer means the collective construction land users transfer the collective construction land-use right to the third people.The secondary transfer reflect the relationship between the land users.This chapter base on the foregoing classified to discuss the qualification, scope, conditions, rights and obligations of those transferor, transferee and stakeholders in the preliminary transfer and secondary transfer.Moreover discuss the special requirements and the protection for the interest of the collective and the members.Chapter five Supporting system of collective construction land use rights transferAs a kind of property,collective construction land use right should point out the rights and obligations of the transfer subject and the connotation and extension of the transfer objects. At the same time should pay attention to the closely supporting and improvement measures.If there is no relevant supporting system to help there will bring very serious consequences like the harm of the interests of main parties and the basic national policy after allowing a large quantities of collective construction land go into the circulation market.From the perspective of civil law, perfect the system of the collective land ownership, land registration, the land market transactions, the transaction object, procedure of supervision system are those important Supporting system of collective construction land use rights transfer.Conclusion The conclusion about the conception, structure and viewpoint of the thesis.