Research On Legitimacy Of Land-use Planning Power System

Due to long-term influence of planned-economy and bureaucracy system, poweroperation rule is faced up with legitimacy crisis in our country, which is most prominentin traditional land-use planning power system. For example, land-use planning powerdeviates from public interest, lacks public “identity” and serious rent-seeking exists.Under the influence of omnipotent government concept and administrativeauthoritarianism, land-use planning power has a strong tendency to restrain land-usemarket function. In practice, land-use planning organs exercise power with strongadministrative regulation color, which tend to lead to government failure, such as captureby special interests, land-use planning power lack of response and high cost of regulation.The root cause lies in centralized power, unidirectional planning process, lack oflegislative empowerment and judicial control, and so on. It proves that traditionaladministrative command and control planning power mode cannot meet the need of landuse and planning governance in new transformation period, calling for improvement ofland-use power system in our country.As land use planning power problems relate to multiple disciplines, in this paper,the legal theory basis of land planning power legitimacy and its system structure areresearched utilizing analysis tools such as the politics, Institutional economics,management science, sociology. Through carding existing related research literature,legal research on the legitimacy of the land use planning power is almost in a blank state.Most of the research literature is from the perspective of land management science andadministrative law, which analyzes problems and puts forward correspondingcountermeasures in land use planning power. However, legitimacy of land use planningpower system is not justified sufficiently, and the criterion is not clarified. In thecountries ruled by law, the research on land use planning power has changed fromtraditional administrative regulation mode to incentive regulation mode. In contrast toforeign countries, research framework on land use planning power has not got rid of thefetter of the traditional administrative law paradigm in our country. It proves that modernadministrative law on land use planning power legitimacy theory in foreign countries can provide valid theory support for the legitimacy of land use planning power and its benignoperation. Therefore, these theories can be used as a guide in our country. It is generallybelieved that it is only through system framework of legal clarified public interest and theindividual "agreement" can the legitimacy of land use planning power be realized.Land-use planning uncertainty theory, multi-center theory, theory of right restrictingpower and planning consultation theory can explain the legitimacy of land use planningpower rationally.In context of modern market economy and society rule by law, land-use planningpower system reform is a process in which administrative power is waning while socialand market power are increasing. Only when market failure appears in land-use cangovernment intervene. The government should let the market and society solve their ownproblems. Market-orientation land use planning control mode takes the advantage of theland market and social body to make up for the inadequacy of land planning agency’sintervention Studying modern countries ruled by law,it is found that these countries alltake the market as the guidance of land use planning power system model:genernallyadjusting the planning power boundary, rationally allocating of the central and localplanning authority,using incentive planning control mode and establishing land-useplanning supervision system.Thus, this article intends to reform land-use planning power system in perspective oflegitimacy. We should make clear the criterion of planning power legitimacy, as it is thepremise of the land use planning power system reconstruction. This paper puts forwardthe legitimacy criterion in land use planning power: From limit of authority criterions,the government should take limited intervention in land use planning, entitling the localgovernment some autonomy and making full use of market system; From involvementmeans criterions, incentive regulation mechanism should play an important role throughpublic and private partnership, which helps to improve regulation efficiency and reduceregulation cost; From the legal position criterions, both parties should negotiate equallyin land-use planning process, where they can realize the planning goal by contract. Fromplanning power control criterions, the entity control and process control should bereinforced. As public power, land-use planning power is more likely to be alienated and abused.According to this standard, this paper puts forward system design to guarantee legitimacyof the land use planning power in our country. First of all, the planning shall follow theprinciple of proportionality, principle of balance certainty with flexibility, relianceinterest principle, balance of interest principle. Second, according to standards oflegitimacy of land use planning power, the legal system includes limited governmentintervention mode, the incentive regulation mechanism, equal consultation mode andpower supervision mode. First,the government should insist limited governmentintervention mode by improving the main body function area planning system,establishing the dynamic planning regulation mode and polycentric land-use planningbody system, setting up the rule of decentralization in land use planning. Second,incentive regulation mode includes the land development rights index trading system andthe interested parties’ compensation rights due to land-use planning regulation. Third,planning consultation in development control system and public and private cooperationsystem should be improved according to planning consultation mode. Last, on the basisof power supervision and restraint mechanism, planning administrative and legislativesupervision and substantial public participation and judicial review system in planningsystem should be reinforced.