| Since mineral resources lie on the surface or underground,mining activities can not be separated from the occupation and use of land.Mining rights and the land property rights have a close contact inevitably.At present,China's mining land is mainly from the rural collective land,however,the defects of China's current system of mining rights,the collective land property rights,the mode of acquisition and the procedure of obtaining result in the conflict between mining rights and collective land property rights.The mining rights are in an awkward predicament,namely: the exercise of mining rights will inevitably infringe upon the original rights of land,or ineffective obtain of the mining lands make mining rights futile,so that the mineral resources become dormant when it cannot be mined.With the rapid development of the national economy,China's mining land quantity is increasing and the conflict of rights in mining is becoming more and more intense,the coordinated development of the mining right and the land right in the field of mining development has become a major social issue that can not be avoided in our times.This paper is mainly based on the theory of real right and the theory of institutional economics,follows the way of “determination--the reflection of the system--the theoretical inquiry--the experience of learning--the system reconstruction”.The legislative mode,specific system and related system in China mining land acquisition are systemically analyzed.Chapter One: The basic outline of mining land acquisition systemThis chapter is mainly about the basic concept and legal relationship of the system of land acquisition in China,based on the concept,characteristics and types of mining land,the theoretical study on the connotation,legal attribute and legal characteristics of the mining land use rights,as well as the relationship between mining rights and land property rights involved in the exploitation of mineral resources on collective land in china,which provides a logical starting point for this paper,as well as the framework of the field and logical boundary.Chapter Two: The necessity of the reform of mining land acquisition systemThis chapter focuses on the generation of mining land acquisition system,the characteristics and the logic and practice dilemma of present system in China,and intents to prove the necessity of the reform of land acquisition system under the market economy system in China.Because the object of mining right and the object land right are adjacent toeach other,it is inevitable to exploit and utilize the land in the mining industry.Therefore,when the mining right and the land property rights belong to different social subjects,the potential conflicts of mining right and land property rights happen inevitably.At the same time,based on the natural attribute of mining land,that is to say,the land of mining industry has the characteristics of first quality and non-replacement.The market mechanism often fails in the field of mining land,so the state must intervene in the mining land market through administrative power.In the era of the planned economy,the social resources,including land,are unified by the state administrative power.At that time,rural collective land did not have property attributes.Under this social background,it is undoubtedly reasonable for the state to obtain the mining land through expropriation.In addition,under the planned economy system,the mining right is monopolized by state-owned enterprises,who is on behalf of the interests of the state and the enterprises themselves stand for the interests of the state.Obtaining the right to use collective land directly through the administrative expropriation has the legitimacy of the law.Therefore,in the era of planned economy,the acquisition of mining land by expropriation mode not only achieves the goal of efficiency value of land acquisition,but also protects the public interests embodied in the mining economy.Therefore,it has its historical inevitability.However,with the transformation from planned economy system to market economy system in China,the allocation of resources in China has changed greatly.At the same time,with the deepening of the market-oriented reform of mining rights,a large number of private capitals involved in the mining industry.The public nature of mining land gradually fades and eliminates,and mining land expropriation is no longer legally justified.On the other hand,with the reform of China's rural land property rights system,rural land property gradually get highlighted,and farmers gradually increase consciousness towards the land rights and begin to fight for their rights.Under the background,the acquisition of mining land through the collection mode will suffer the collective blockade and struggle of farmers,triggering a large number of social contradictions.In addition,there are some defects in the establishment of the right of mining right and land right,and in the way of obtaining and the procedure of obtaining in the current property right system of our country.Not only the mining enterprises have difficulty in land use,but also the mining right is difficult to be realized,and the burden of the land for mining enterprises is increased.At the same time,it also damages the collective land rights of farmers,leading to the flood of land invisible market.Therefore,the current system of land use in mining industry is in urgent need ofreform.Chapter Three: Investigation and Enlightenment of Acquisition System of Mining AreaThis chapter mainly carries on the comparative analysis to the foreign mining land acquisition system,and aims to provide the sample experience for the reform of the mining land system in our country.By comparing and analyzing the mining land acquisition system in representative countries and regions,it can be found that the treatment of mining rights and land property rights is not based on the different stages of social development in different countries,and whether the land used for the value consideration of mining land is the same.Developing countries generally pay more attention to the economic value of land and tend to use land for mining purposes,which usually gives priority to mining sites in substantive law,with mining rights over other rights on land.Developed countries generally attach importance to land comprehensive value;therefore,in dealing with the relationship between mining rights and land rights,they pay attention to land economic value and other values of the coordination and balance,generally through the equal negotiation mechanism to solve the land use rights conflict.In the processing of mining land,because the property management system is different,countries are not applying the same process,but countries generally pay attention to mining rights and land rights acquisition procedures to achieve consistency.In the mining land to obtain the mechanism and approach,most countries generally pay attention to mining land to obtain the basis of the role of the market mechanism,and focus on the way through civil consultation mining land.In the law is to pay attention to the means of civil law to solve the problem of mining conflicts,giving the purchase,lease and easement the legal status,and to provide relief mechanism to civil and private law.Of course,the mining land market is not fully competitive market.Resource allocation efficiency cannot be optimal,and foreign countries also focus on mining land compulsory intervention,that is,when the market mechanism cannot effectively supply mining land,the general will create a mandatory power tools,so as to obtain an effective system for mining land acquisition.Chapter Four: Exploring the Reform of Mining Land Acquisition Mode in ChinaChina's mining land system needs to be reformed.In addition to the existing system has inherently insurmountable its own logical contradictions,there is a realistic development trend of farmland utilization system support and practice test.In the Chinese transition progress from a planned economic system to a market economic system,China's rural landuse system has undergone profound changes.In the course of the development of farmland conversion,the collective land is expropriated by the state,and the state controls the primary land market,and gradually releases the construction land market.Under the premise of complying with the national land use control,the construction land entered construction land market and obtained the right of free land transfer at the policy level.In this social development background,in 2005,China began a nationwide mining land reform pilot,and achieved great success,resulting in good economic and social benefits.Mining land reform pilot the most important achievement is the innovation of China's mining land supply model,that is,from the traditional land acquisition to direct use of collective land temporary land,this land use mode does not change the ownership of the land pattern,And land acquisition procedures to ensure that the land after the development of land quickly restore the use of agriculture,thus ensuring the target of the protection of China's cultivated land.Mining land acquisition mode,the temporary and compulsory land use of mining,the negotiated land use and the mandatory manifestation lie in national unilateral will in mining land,not to the land owners' will;its autonomy lies in the agreement between the land compensation claims and land owners,so as to protect the legitimate rights of land owners.Successful mining land reform for the future of our country has made similar mining site provides a good role model.Chapter Five: Basic ideas and basis of China's land acquisition system under the market economy systemThis part mainly designs the macro system of mining land acquired on collective land in China,and discusses the basic concept,value goal,basic principle and realization path of mining land acquisition system.With the rapid development of China's national economy,Chinese society has entered the social development stage of “industry re-feeding agriculture and city re-feeding rural areas”.Under this social and economic conditions,the original mining land uphold the "Raising public and restraining private" concept must be amended,and should be gradually transformed into the public interest and private interests of coordinated development,in certain circumstances should be the new ideas "restraining public and Raising private".In the mining system to obtain the value orientation of the system,we should uphold the value orientation of “Coordinated development of efficiency and fairness,pay more attention to social equity ",and co-ordinate the Mining security,farmers' interests,ecological environment and food security.In the basic principles of mining,we should on the one hand adhere to the priority of mining land protection principles,on the other hand payattention to the principle of mutual coordination of Mining development and land use coordination.In the acquisition of mining land,we must change the existing acquisition-oriented land use model to the land use mode of giving farmers the right to land acquisition under the premise of respect original Land ownership of mineral resources,which applies equal consultation land-based mechanism.In the case of invalid negotiations,start the government mandatory land use model.In the compulsory land use process,the government should dilute the compulsion of administrative power,use more of Private legal mechanism of civil negotiation and ultimately build a market-oriented way,protected by forced mode and supplemented by innovation new policy of collective mining land use,which is an integration of discipline and flexibility,of both public and private interests and of public law and private law.The Integration of public law and private law in China's mining land acquisition system is not only supported by the experience of pilot reform,but also in the theoretical level is also of legitimacy and rationality.From the perspective of economic dimension,and according to the theory of economic transaction cost,the market has a higher efficiency of resource allocation under the condition of perfect competition.Under this condition,the government's intervention in resource allocation through power has nothing to do with economic efficiency.In the case of high market transaction costs,the market cannot correct itself through its inherent defects,leading to market failure,government intervention and therefore rationality.However,the government allocation of resources is also a cost,only when the cost of intervention is less than the cost of the market,the government intervention is of legitimacy and rationality.In the field of mining land acquisition,market acquisition and land expropriation are the resource allocation modes,in which we have to compare the size of the market and administrative costs to determine the supply way of mining land.Even if the choice of administrative means to allocate land,we should also choose the pattern with smaller cost of administrative intervention.In general,the legal easements are relatively low in cost compared to administrative levy and should therefore be given priority.According to the economic externality theory,because the mining economy provides material and energy for the development of the national economy,mining has a positive external effect.For the solution of positive externalities,it is not generally possible to adopt purely private means,and the state can only intervene through public law.In the field of mining land acquisition,public law generally refers to the means of administrative law,including the basic means of legal easements and land levy.From the perspective of law,theory of compatibility between public and private law needs to be reformed.From the perspective of publication of the private law,the land property has a social obligation based on the limited nature of land resources and abundance of social functions.Land not only has the function of maximizing the value of private property,but also has the social function of social welfare distribution and coordination,and social welfare.Therefore,based on the need of coordination of mining rights and land rights,the state must adopt legislation to restrict land property rights and to intervene in the contract freedom of land owners.From the perspective of the privatization of public law,although the state starts from Coordinate the relationship of property right utilization of the Social public interest,the collection of land property has certain legitimacy.However,due to the inflexibility of administrative means leading to the increase in administrative costs,land use efficiency is reduced,which easily damages the interests of the original land rights holders.Therefore,the reform direction of mining land acquisition system is to weaken the existing administrative acquisition model and change administrative acquisition mechanism to market-oriented mechanism,supplemented by administrative coercion.Chapter Six: Specific system of mining land acquisition from collective landThis part mainly designs the specific system of mining land in collective land of our country,and puts forward a typological analysis in China,and the different mining lands are suitable for different land supply model.In a market economy,firstly mining land use should be resolved by the market mechanisms at the national macro-control,and the use of land pattern should be based on market competition relationship between the parties' consultation,including lease,easements and stock cooperation modes.However,because the mining land is of the first qualitative and irreplaceable,completely through the market mechanism will lead to lower market efficiency,and even the market mechanism is completely out of order;therefore,when the market way fail to supply land,the national coercive force must restrain and intervene for the protection of Private land rights.The intensity of its intervention should be different according to the scope of mining land use,the way of utilization and the intensity of utilization.For long-term,large-scale mining land,or mining land which is difficult to restore the original use of land,should use land acquisition mode and Mining land use right should replace the original land property right;for short-termland and those can restore to the original use,or local land use and little affected land tenure,you can use the legal easement model.However,whether it is the collection or the legal easement model,the common point is the intervention to private property based on the principle of land-use efficiency,which is the government's intervention of Redistribution of property rights;therefore,Strengthening the legitimacy of administrative intervention,standardizing the procedure of administrative intervention and reasonable compensation should be strengthened in order to achieve the value goal of optimizing the efficiency of mining land on the basis of the society fundamental equality.Mining land system reform depends on the improvement of the relevant supporting system;especially the establishment of a unified urban and rural mining land market must be based on the premise of national land macro-control,and must strictly follow the land use control system.Mining land use control require mining land not only to comply with mining land planning,but also to follow the mining land scheme,so as to avoid the mining market failure in the case of government regulation failure. |
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