Font Size: a A A

Research On The Legal System Of The Market Way To Obtain The Public Interest Land In China

Posted on:2016-04-19Degree:DoctorType:Dissertation
Country:ChinaCandidate:H B BianFull Text:PDF
GTID:1226330464959620Subject:Economic Law
Abstract/Summary:PDF Full Text Request
Obtaining public land is the basic form of configuring the new construction land in our country. Public land acquisition system is the essence of legal acts of states through the implementation of land ownership rights of behavior in the process of public land. Under the condition of market economy, the public welfare land acquisition should give full play to the basic role of the market mechanism in the allocation of land resources. Public power allocation of compulsory should gradually eliminate and retreat to the social equity backing. The market has priority way for guarantee. This is the international trend of the public land acquisition. And the land acquisition in China’s public welfare system highlights the mandatory, market unilateral will, power priority acquisition system, lack of private law adjustment mechanism, the lack of the ownership transfer system. Benefit compensation of unfair disadvantages is particularly prominent. Because of the fuzzy extension of the interpretation of the public interest, a lot of business land is also included in the scope of collection. Real public land demand cannot be guaranteed. Mandatory form becomes the ways of obtaining the construction management. It causes the high system cost and system adaptability, and public welfare land acquisition conflicts system function. The form of obtaining public land must be changed. It should be from the mandatory form to the market form.In order to solve the problems caused by the compulsory acquisition mode. The theory and practice of our country to strengthen the definition of public interest have mandatory norm behavior and improve the compensation reform, but we have little success. Public welfare land acquisition as a means of resource allocation is not only the public power of government intervention. It should give full play to the private mechanism respect parties agreement negotiation. For public land compulsorily acquired governance system should not be limited to "repair". It should explore the external substitution. It should be made mandatory institutional strengthening weaker and establish a market transaction nature of public welfare land acquisition.Based on the theory of public goods supply, we can know about that public land belongs to public goods in nature. Public welfare land acquisition is the public participation in the public process. The government is to provide public service and the production of the main body. Public land acquisition should take into account the interests of the public and private rights. Because of the existence of government and market failure, the theory of new public service government will be the role of service. The protection of private interests is under the premise of the pursuit of public interest. So the government should try to avoid the way to obtain the use of mandatory. As the gainer of public land acquisition should be in accordance with the rules of market transactions and make the agreement with original land rights.From the angle of law, public land acquisition is considered to adjust the way of public law and private law. With the integration of public law and private law equality, consultation and mutual benefit, public land acquisition system design requirements for the priority of rights. The public power changes into non mandatory or weak compulsory. In the public land acquisition the government should transition to the administrative relative person and the equal status of special subject. The government and the original land rights is no longer the administrative legal relation. They should cooperate. Land rights are endowed with social responsibility for public interests. Public land acquisition should be based on respect for the mandatory rights as the premise, in consultation as the core. The government in terms of authorization and limit the right of intervention.The form of public land market obtaining can become mandatory measures to solve the problem, in addition to the legitimacy of evidence theory, also has the realistic system and practice. The current compulsory acquisition has the benefits of protecting public land, the elimination of the land rights of people to overcome the resistance, the bilateral monopoly, resisting the negative externalities and other positive benefits. But the profit system cost is huge. The negative cost of system performance caused by the unfair distribution of land resources, land for construction and it also causes land finance, structural imbalance caused by the potential power rent-seeking. It can increase the implementation cost, damage the land rights of people and have a huge social cost. The cost of compulsory acquisition system is greater than the income of system. The reform of public land market forced the way to obtain the transition to a market mode. That become inevitable, and it also provides the system demand reasonable way to get involved into the market. The market is extracted from the practice. It has deep roots system. Although the market in our law system is blank, but in the foreign market development mode has been institutionalized. By analyzing the samples of the representative countries and regions of the public land market system, the system efficiency is the public welfare land acquisition mode selection criteria. The market priority is the basic mode of the priority public land ownership transaction. Ownership is legal approach to public land transaction. Therefore, the practice foundation of public land market has its own system to verify the reality of the system level, which is China’s public land market construction to provide the reference system. Let’s look at the exploration of the land collection system reform of China in recent years. Our government is doing the protection of land private right. It also improves the land market reform of land expropriation compensation, business land out of the scope of land requisition and other series of charity. The local level also perfects compulsory acquisition mode, collective management of construction land use right in legislation on direct trading, quasi public land acquisition by market. In these reforms, they get in the way of the system to the market, which is China’s public land market construction system and create a system environment and lay the foundation for the system.In the public land acquisition laws, government, as the representative of the public interest can acquire land rights. So it becomes the receiver of the public land. The original land rights based on equity must fulfill the social obligations of land rights and be in conjunction with the government or cooperation. It must realize the transfer of land-use rights or restrictions. So it becomes the result of the original land rights. Based on the different nature of the law, the parties show different legal status and the way to obtain is different. On the basis of private law, the government and the original land rights are the subject of legal relationship of equality. The government should give fair consideration and implementation of public land acquisition. Based on adjusting the public law, the government and the original land rights are the unequal subjects of administrative legal relationship. The government should give the compulsory acquisition of land rights holder of the original land through the unilateral will and in the premise of the land compensation. The object of the public land acquisition has both public land ownership and other rights. Therefore, the adjustment of economic law is the public welfare land acquisition behavior under the contingency of dynamic. It is also an economic law behavior based on equivalence paid right transaction. So, in general, public land acquisition is that the state as the subject of liability (public land access), achieves public land access behavior which is based on the needs of public interests, in accordance with the overall land use planning and city planning, uses government and market coordination way and through the transfer of land or restrict access to the rights of the land rights.The way of obtaining the public land market is based on the practical experience of the foreign system. It provides the material elements for building a model tool. I propose the choosing standards and conditions of the public land obtaining. They should be the standard of benefit balance, the standard of public interest degree and the standard of exchanging condition. The low transaction cost should choose the market way, or we should choose the coercive way. The public interest degree shows that pure public land should use the coercive way and the quasi public land should be obtained by the market way. The conditions of trading terms show that if we have full trading terms, we should use the market way, or we should use the coercive way. The efficiency standard is the fundamental standard of the public land obtaining choice. The degree of public welfare standard and market conditions is the standard adjuvant standard. In order to make the public welfare land acquisition mode selection criteria more operable, obtains the system should set the relevant conditions. Public welfare land acquisition system should be to protect the land private right system premise and force the way for market timing requirements and it is also in accordance with the principle of least damage weigh land acquisition mode.By expounding the present public land acquisition system in China and the evaluation of the public welfare land market reform, it has been further confirmed that the public land market is the legitimacy way. After analyzing the obtaining ways of the complete market and part of the market, the author puts forward the reform path design compromise compulsory way in China. The establishment of the market and weaken the dual path of mandatory mode design. The obtaining form of the public land market is not the replacement of the mandatory mode. Force and market are complementary way. The market that the author discussed is actually the reform on China’s market and crack of mode field force. The priority of public land market diversification has built legal system: first, the establishment of market oriented public land acquisition system. The collaborative purchase is priority and leads to the coercive way. Whether it is quasi public or pure public welfare land, we should use market purchase mode. Second, by shrinking the form of land collection and integration of land, the mandatory way limited to pure public welfare land acquisition ways. The land expropriation will continue to fulfill the functions and role of traditional. It is the collective land to the public building in the only way. Only the pure public land can fit the form of land collection. We should take back the land which changes from the public welfare land to the collective land, and complete it by the way of land expropriation. The only way of the land recovering should use the mandatory way to obtaining the public land, including the using right of state-owned land and collective economic organizations for public welfare construction.Of course, as a comprehensive system of land expropriation should also be involved, but in view of the land requisition as a temporary way to obtain the design did not change, so I don’t want to write more about it here. Third, through the establishment of the public easement, land lease right and establish the control way of collection, we can create the non transfer of ownership acquisition system. For the cost, system efficiency, based on the minimum damage principle of proportion requirement, set the public easement and regulatory restrictions on raw land rights of people to achieve public welfare land acquisition.Improving the construction of public land market system depends on the relevant supporting system. In order to make the public land market system and other system coordination, the author suggests that we should build the establishment of urban-rural land transfer market, improve the farmers’ collective ownership and strengthen land using control system.
Keywords/Search Tags:The public interest land obtaining, The market way, Private law adjustment, The choosing standards and conditions, Diversified system
PDF Full Text Request
Related items