Study On The Legal System Of The Collective Land Expropriation

Since the founding of New China,the legal system of land expropriation has gone through four stages:the initial stage of land expropriation legislation,the stage of adjustment of land expropriation legislation,the stage of establishment of collective land expropriation and the improvement of legal system of collective land expropriation.After several changes in the legal system of collective land expropriation in China,we have gone through a process of starting from scratch and gradually adjusting and perfecting it.However,due to historical background,economic status and policy orientation,there are some institutional attributes that still affect the operation of the system of collective land expropriation in the process of evolution.The performance is as follows:the standard of public interest in land expropriation is missing;Land expropriation is led by the administrative organ and is compensated according to the original purposes of the land being expropriated;Compensation for land expropriation is mainly based on administrative remedies.Studying the causes that affect the change of the system of collective land expropriation in our country,it can be attributed to the concept of planned economy that serves the national economic construction and guides the legislation of land acquisition,the local government actively promoting land finance,and the land market being monopolized by the government.The current legal system of collective land expropriation in our country consists of the normative documents such as relevant laws,regulations,rules and local laws and regulations as well as the relevant policies.It covers the articles on public interest,the rules of land acquisition,the compensation system for land expropriation,the land requisition relief system.Despite of the trend of systematic development,the following overall legislative defects still exist.First,the definition of public interest is lacking.Due to the lack of a clear definition of the extension of public interest,many land-use behaviors that are obviously not for the public interest are also included in the scope of collective land acquisition.Second,the expropriation procedure is not transparent and the process of formation of collective land acquisition decision is completely in the state of black box operation.The collective land acquisition plan and resettlement compensation plan are not announced until the approval is approved.After the announcement,the expropriation person,for any reason,cannot affect the implementation of land acquisition programs.Third,the expropriated people have no right to participate.In the legal relationship of land expropriation,the state is in an administrative dominance due to the exercise of the public authority of land expropriation and the expropriated person can only be in a position of passive obedience.Fourthly,the standard of compensation for land acquisition is low.The standard of compensation for land expropriation is entirely formulated and implemented by the administrative organ that implements land expropriation in accordance with the thinking of a planned economy.There is no market-oriented mechanism.Fifth,the channel of relief for land acquisition is poor.Judicial review of the compensation for expropriation of collective land in China carries out the pre-setting of administrative rulings and the pre-ruling of the judicial rulings still requires preconditions for coordination so that the parties' right to judicial remedies is greatly restricted.As far as the actual operation of collective land expropriation system in our country is concerned,by analyzing relevant social investigation and judicial decisions,we can find that collective land expropriation is not based on public interests in the practice.The provisions of "Constitutional," "Property Law," and "Land Administration Law" that legislate" the land can be requisitioned for the public interest" is emptied by local governments.The article only exists on the paper.From the investigation of farmers' willingness to expropriation,we can find the reasons why farmers are unwilling to land expropriation.The low compensation is the main reason.However,it is also an important reason that the non-agricultural work is hard to find and non-guaranteed.Due to the defects of system design,the procedure of land expropriation is often formalized in practice in the operation of land requisition procedure norms.Whether it is the decision of expropriation or the formulation of the compensation and resettlement plan,the peasants' right of participation and the right to information have not been implemented and effectively guaranteed by the system.Under the existing standards,the value of land is seriously undervalued in the operation of the compensation standard for land expropriation.Landless peasants often can only get low-level resettlement compensation in monetary form,and their long-term interests are not usually taken into account.After the land is expropriated,the compensation method of the contracted land is mainly the compensation fee,but the replacement rate of the land expropriation compensation to the rural households is not high,resulting in many peasants losing their land and losing their jobs.In the operation of land expropriation and relief regulation,the channels of right relief under current system of collective land expropriation are narrow,the efficiency of judicial and administrative relief is low,and in practice,the compensation for land expropriation is intercepted,the problem of deduction and appropriation is prominent,and even the distribution of compensation payments is unfair.In practice,land acquisition disputes are uncommon,but because of the large number of disputes involving land acquisition compensation cannot be resorted to judicial final solution,social conflicts are easy to intensify the mass incidents.Taking the public judgments of the case from the law big data platform as the data source for analysis,the civil lawsuits concerning the rural collective land expropriation disputes mainly focus on two types of cases:the distribution of compensation fees and the infringement of the rights and interests of the members of collective economic organizations.The administrative litigation verdict involved in land expropriation,mainly classifies in the general administrative case and land administration judgment.Involving the administrative litigation verdict of the land expropriation,it mainly included the general administrative case and land administration judgment and the proportion of administrative expropriation judgment is small,which indicates that the administrative litigation lacks the judicial remedy against the land expropriation.Perfecting and reconstructing the legal system of collective land expropriation in our country has become the necessary requirement of the current legislation.To this end,in the first place,we should update the concept of legislation.First,we must adhere to the concept of shared development and involve the expropriated people in the distribution of the benefits of land development.Second,we must establish the concept of urban-rural integration and give due status to rural collective land.Thirdly,we must follow the concept of protecting property rights in accordance with the law and effectively protect land property rights including land ownership and usufructuary rights.Fourth,it is necessary to clarify the legislative concept of "suppressing public right and improving private right" and give more attention to the individual private rights of peasants.In the next place,we should change the current legislative mode of collective land acquisition.Taking into account the strengths and weaknesses of the legislative model of centralized and decentralized land acquisition and the current state of land acquisition legislation in our country,we should choose the legislative model of the centralized and decentralized combination.We should formulate a unified"Land Expropriation Law" that integrates most of the existing laws and regulations of the Land Administration Law and other relevant laws and regulations on the collection of land into the legislation of land acquisition,leaving only some principles of norms in the Land Administration Law.Finally,in light of the announcement of the Land Administration Law(Amendment),specific legislative proposals should be optimized.The first is to clarify the terms of public interest.In substance,it should adhere to the legal principle and the principle of proportionality of defining the connotation of public interest.In the process,it should set up pre-investigation,democratic consultation,hearings and other procedural systems.The second is to refine the land requisition procedures from several aspects,for example,pre-approval procedures,approval procedures,implementation procedures and hearing procedures.The third is to raise the standard of compensation.It should clarify that the compensation for expropriation of collective land should abide by the principle of complete compensation and the collective ownership of land,the ownership of buildings and structures on land,the ownership of above-ground crops,the right to use land for collective construction,the righ to use house sites,the right to contract and manage the land,Other land rights and interests should be included in the scope of compensation for expropriation of collective land.As for the compensation standard,we should adhere to the principle of marketization as its most basic standard of compensation,and take into consideration the actual conditions of the affected people.We should explore some methods to replace the current single compensation with the multivariate settlements and improve the distribution of land compensation.Fourth is to improve the means of land relief.We should establish a multi-level system of relief channels,in particular,which is to establish the relief method of the right,to give the right of requisitioned claims back,to improve the administrative relief and judicial relief,to broaden the parties' scope in the administrative and judicial relief and to reduce the threshold of parties seeking the relief.