Study On The Transferring System Of The Right To The Use Of Collective Land For Construction

The target of reforming collective land system for construction in New Era is to achieve collective construction land equall with state-owned construction land and establish a unified urban and rural construction land market.However,Land Management Law and other laws limit the transfer of the right to the use of collective land for construction strictly,which break the principle of property right equality.It not only harm the interests of farmer's collective land,but also hinder the urbanization.The paper attempts to address the following issues:what is the right to the use of collective land for construction?Why can the right to the use of collective land for construction transfer?How do the right to the use of collective land for construction transfer?Which supporting systems will chang with the transfer of the right to the use of collective land for construction?In this paper,the text includes five chapters.Chapter1discusses the basic theory of the right to the use of collective land for construction. The right to the use of collective land for construction is a usufruct existing on the collective land and links collective land ownership and the socialist market economy. The right to the use of collective land for construction has its particularity in the subject,content,object and other aspects. The right to the use of collective land for construction is different from superficy of traditional civil law,the right to the use of house sites, the right to the use of state-owed land for construction,land lease rights fundamentally,which is a separate usufruct in our property system.Chapter2analyzes the obstacle of the right to the use of collective land for construction transfer and its digestion path.The transfer of the right to the use of collective land for construction is to establish and chang this right in the condition of collective land ownership. In the context of urbanization, the transfer of the right to the use of collective land for construction would lead to collective land into the city,which may destroy the purity of the land the city belongs to the State that Article10of Constitution established. Land Management Law and other laws stipulate that all units and individuals for construction, must apply to use state-owned land, collective land is shall not sell and transfer for non-agricultural construction.The perfect system of collective land ownership is the prerequisite of the right to the use of collective land for construction transferring. However, there are structural defects such as virtual spaces, lack of content in the collective land ownership. Nevertheless,these constraints that restrict the transfer of the right to the use of collective land for construction can eliminate.Article10of Constition is merely declaratory provisions. Land use rights can be transferred in accordance with the law is constitutional basis of the transfer of the right to the use of collective land for construction. The legal norms which limit the transfer of the right to the use of collective land for construction lack legal basis. It not only can not achieve the purpose of the protection of arable land, but also damages the farmers' land property rights, the legislature should amend these laws in a timely manner.Chapter3introduce the normative documents which pilot area formulate to norm the transfer of the right to the use of collective land for construction.The reform of pilot area break the provision of the existing law and establish a relatively complete set of the right to the use of collective land for construction.Of course,there are also limitions,such as circulation narrow range, circulation mode fuzzy, transfer process is not standardized, income distribution imperfections.In addition, normative documents have low effective level relatively and lack of uniformity and stability,which are dififcult to ensure the safety and efficiency of the transfer of the right to the use of collective land for construction. Therefore, legislators should sum up the experience of the pilot reform, modify and develop the relevant laws, which provide an institutional guarantee for the transfer of the right to the use of collective land for construction.Chapter4discusses how to construct the transfer system of the right to the use of collective land for construction. The transfer of the right to the use of collective land for construction should adhere to two basic principles,which it can not change the collective land ownership and violate land use management system, the right to the use of collective land for construction is a usufruct,its basic forms include assignment, transfer and mortgage.The assignment of the right to the use of collective land for construction is that collective farmers demise a certain period right to the use of collective land for construction to land user,which pay rent to collective farmers.The person who enjoys the right to the use of land for construction shall, according to law, pessess,use and benefit from the land owned by the collective farmers,and shall have the right to use the land for erecting buildings and structures and the facilities attached to them.For creating the right to the use of land for construction, an application for registration of such right shall be made to the registration authority. The right to the use of land for construction shall be deemed to be created as of the time of registration. The registration authority shall issue to the person who is granted the right to the use of land for construction the certificate of the right to the use of land for construction. A person who enjoys the right to the use of land for construction shall have the right to transfer, exchange, offer as capital contributions, give as a gift or mortgage such right, except where otherwise provided for by law.The legislative path for constructing the transfer system of the right to the use of collective land for construction: Start NPC Standing Committee start the modify program of Land Management Law to repeal the prohibition about the transfer of the right to the use of collective land for construction. The State Council formulat The Management Act of the Transfer of the Right to the Use of Collective Land for Construction,which Provide an institutional guarantee for the transfer system of the right to the use of collective land for construction.Chapter5discusses how to improve supporting systems related to the transfer system of the right to the use of collective land for construction. In the construction and improvement the transfer system of the right to the use of collective land for construction, we must improve the land acquisition and land use management. Where the right to the use of land for construction is transferred, exchanged, offered as capital contributions, given as a gift or mortgaged, the parties shall enter into a contract in written form accordingly. The period of time for use shall be agreed upon by the parties, provided that the remaining period of time for the right to the use of land for construction is not exceeded. Land management system exists deficiencies,which should be corrected.