| Behind the bustling and noise coming from the rapid development of real estate market and changing frequently of the regulation policy,it is the realistic dilemma had to face which because of the numerous regulation policy legitimacy question.Although law circle dissected the negative influence of macroeconomic stability,the real estate market development,the promotion of the government management ability,the quality of legislation by the government sprawl the control over the market account to the dimensionality of the rule of law combined with the principles of the department of law,and put forward a series of legislative suggestions,but fail to guide the innovation of the system.And the real estate market policy area is still a huge legal enclave and the blind area of the rule of law.Therefore,this article focuses on the root cause of the concept and system lead to the dilemma of law in the real estate market regulation and contributes to the thinking of theory and suggestion of system construction on the reverse of the relationship imbalance and function disorder of the policy and law during the real estate market regulation.On the basic of comprehensive consideration of the history of China real estate development,the performance of the real estate market regulation,and the dilemma of policy “legitimacy”,This article summed up the development model as “government-led” pattern on the in the field of real estate market.This pattern,on the one hand,construct a "market-to-be space" game platform of the real estate market,which coincidence three kinds of competition: between the demand sides,between the supply sides and between the local governments,and the competition was distorted the “local performance competition” between the local “alliance of the politics and commerce”.on the other hand,as a direct result of this pattern,is the unbalance of policy with legal relations in the field of the real estate market regulation,namely the dilemma in the legitimacy of the policy and at the same time,“the cavity of law” in the structure and function of the legal system.The “government-led” pattern in the field of the real estate market development lead to a kind of hybrid model in the construction of the system of the market management,which give a priority to the policy evolution and make auxiliary position of the law,with the national governance theory of “Value the policy and neglect the law ”as the logical starting;the direct administrative intervention to the market and the unrestricted decentralization from the central government to the local government in the economic power as the foundation of institutions;the efficiency of the allocation of the economic resource by the government as the core objective.In order to change the “government-led” development pattern in the field of real estate market,on one hand,to adjust timely the function and orientation of the government in the real estate market back to the duty of macro-control,micro supervision and temporary emergency intervention,so that to make the market growth in spontaneous order;to meet the basic housing needs of public security and protect the citizens' adequate housing right by fully realize social security function of the government;to achieve a balance of the efficiency of the houses produce and the distributive justice of the houses.on the other hand,transform the rule of policy to the rule of law,and coordinate the respective functions of the policies and laws,so that to achieve the balance in economic development,political stability,administrative regulation and rights protection.For sake of constructing the governance framework of the real estate regulation under the rule of law,we should take the view of the balance of the rule by policy and rule of law.First,confirm that the policy legitimacy is a basic guarantee of public policy ethics in function from the value dimension by analyzing the benefit of policy legitimacy in the basic level,promotion level,perfection level.Second,from the logical dimension,it requires administrative control transition from the administrative control suitable for the planned economy to legal control suitable for market economy under the consideration of the going transformation in the social system and control system,governance model,economic and social development driver institution in the current period;together with the promotion of the synchrony of the internal structure change: namely the synchronization of the transformation in economic operation mode,social governance model and the construction of the rule of law.Second,from the logical dimension,it requires administrative control transition from the administrative control suitable for the planned economy to legal control suitable for market economy under the consideration of the going transformation in the social system and control system,governance model,economic and social development driver institution in the current period;together with the promotion of the synchrony of the internal structure change: namely the synchronization of the transformation in economic operation mode,social governance model and the construction of the rule of law.Finally,in the aspect of system design,confirm the four areas of cooperation between the policy and the law: the perfection of market economy system,the healthy development of the real estate market,the confirm and protection of the public housing interests and the citizens' basic housing right,the transformation of the government action model and the promotion of the management ability.On this basis,Institutionalize the upgrading mechanism from policy to law and the policy experiment mechanism;at the same time,reform the foundation of the institution which give the power to the government to intervene the market directly in the areas of land,tax,monetary,temporary price intervention;furthermore,form a complete set and make the improvement in the basis of the relevant legal system of the real estate market and the market macroeconomic regulation.Introduced the institutional arrangements involve enacting the laws such as “Public Policy Law”,“Reform and Development Law”,“Social Security Law”,“Macro-control Law,“Planning and Programming Law”,“ Housing Protection law”,“Housing Law”,“Administrative Responsibility Law”,“General Provisions of the Tax Law”,“Industry Law”,"Fair Trade Law",“Real Estate Market Supervision Administration Law”;and improve the laws such as "Legislative Law","Price Law"," Law of the People's Bank of China ","Banking Supervision Law","Property Law","Urban Real Estate Administration Law”,“Administration of tax Collection Law”,“ Real Estate law”,“Anti-unfair Competition Law,the Anti-Monopoly law”.This paper has discovered the behind legal system defects by comprehensive surveying the various types of real estate market regulation policy,and reveals the common problem of “the cavity of law” in the execution of economic power in the real estate market,together with the behind value orientation and logical pattern.Beyond binary thinking in evolution of spontaneous social order and social system construction,the article explore the basic framework of the evolvement of the local system spontaneously in the areas of policy experiment under the rule of law and policy upgrade to law by focusing on the core problem in the period of social transition with the consideration of the stage character of the upgrade of the driving pattern of economic and social development.According to the transformation theory and governance theory,the article discussed the logical path and system design from policy governance to the legal governance the real estate market from the perspective of collaborative interaction between policy and law. |
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