A Study On The Renewal System Of Construction Land Use Right Embedded In The Public Land Rights System

Nowadays,the term expiration and renewal problem of construction land use right is becoming an important theoretical and practical issue concerning the further reform and development of China's land property right system.In particular,the automatic renewal of residential construction land after the expiration of the period has been the focus of attention from all sectors of society.In 2007,the Property Law established a “double track system” for the renewal of residential and non-residential construction land on state-owned land.Since 2015,important institutional achievements have been made in the market reform of collective commercial construction land,which has been implemented in the amendment to the land management law in 2019.However,there is a lack of attention from all walks of life on the issue of renewal of collective commercial construction land.In this regard,this paper studies the three types of construction land use right renewal system,which are state-owned residential construction land,state-owned non-residential construction land and collective commercial construction land.At present,some scholars have carried out a large number of meaningful studies on the renewal of the right to use construction land in China,which have great differences in perspectives,methods and analytical frameworks.Among these studies,many of them often discuss the renewal of land property rights in isolation from China's land property rights system as a whole.From extraterritorial experience,the renewal system based on the structure of “Separation of Two Rights” is an integral part of its land property rights system as a whole,and China is not an exception.Based on this,this paper tries to construct an analysis framework of renewal system of construction land use right embedded in the structure of Public Land Rights System with Chinese characteristics.Based on this analysis framework,there exists a causal feedback structure between China's Public Land Rights System and its renewal system.That is,on the one hand,the inherent stipulation of the Public Land Rights System in China determines,constrains and shapes the development and formation of the renewal system of the right to use construction land.The renewal of the right to use construction land is the result of the theoretical logic of the Public Land Rights system.On the other hand,the renewal of the right to use construction land is inevitably the expression of China's Public Land Rights System.Although the core of the Public Land Rights System will be reproduced and consolidated through the renewal system,the reform and development of the renewal system is bound to promote the innovative development of the Public Land Rights System in China.At the same time,the renewal of land use rights is not unique to mainland China.In view of the fact that other countries and regions of civil law system and common law system have accumulated abundant practical and theoretical experience on the renewal of the right to use land,these theories and experiences can be borrowed for reference.Talking about the automatic renewal of the right to use residential construction land on state-owned land,the renewal of residential construction land after the expiration is not a simple legal issue of the extension of the contract period,but a major institutional change involving the reform of public ownership and the long-term political and social stability since residential construction land has such special attributes as long duration,large number of co-owners,large extension scale and close relationship with citizens' right of residence.In 2007,the property law put forward that “automatic renewal” should be carried out for the residential construction land,which clearly defined the major reform direction.This study explains that the key of automatic renewal is that the land use right owner can start the renewal process without application,agreement with the original transferor and consideration.In order to guarantee the realization of automatic renewal mechanism,it is necessary to finally put it on the track of statutory renewal,that is,when the term of use expires,the right owner can automatically complete the renewal according to law,and the original transferor may cooperate with it according to law.However,the commencement of the automatic renewal procedure is not based on the payment for the renewal,which does not mean that the user does not have to bear the fee for using the land in the new period.Aiming at the renewal fee system for residential construction land,this study introduces a Hedonic Price Model,and based on the transaction data of the second-hand residential housing market in Hangzhou,based on regression analysis of various characteristic factors of second-hand residential transaction prices.The paper found that the length of the remaining years of residential construction land has a positive impact on the price of second-hand housing transactions,but compared to other influencing factors,the remaining years of factors have a relatively low degree of impact on house prices,which indicates that the secondhand residential housing market has a significant respond to the remaining years of residential construction land.Buyers can expect to pay the renewal fee after the 70-year property rights of future residential construction land expires,but repaying the high land transfer fee similar to the land-transferring fees of the first sale of construction land exceeded the psychological expectations of buyers.Under the system framework of statutory renewal,the owner of the right to use residential construction land should fulfill the legal obligation to pay annuity during the new period.In the design of the way to collect annuity,it is necessary to set up additional estate holding taxes and reasonable tax rate on the basis of the future real estate tax,and levy annuities of different amounts according to different circumstances for real estate after the renewal.When it comes to renewal of state-owned non-residential construction land,the non-residential construction land involves relatively fewer individual owners and has a relatively narrower audience.At the same time,its land-use activities are diversified,and its operation and production activities are mainly aimed at maximizing private interests.Therefore,the renewal of the right to use non-residential construction land after renewal should not adopt the method of statutory renewal.Instead,the renewal system should be chosen to provide land users with space and ways to express their will to renew,so as to meet the diversified renewal needs of differentiated land use activities on non-residential construction land.Unlike the automatic renewal of residential construction land,the renewal of application for non-residential construction land is a “consensual renewal”.From the perspective of legal relationship,the "consensual renewal" of non-residential construction land is the autonomy of will under the constraint of public law,that is,the grantor and the grantee can finish the renewal by reaching an agreement and concluding a contract.To guarantee the relative superiority of the owner of the right to use the land relative to the original transferor,the public law imposes certain norms.The logic of this system is embodied in the key links of renewal application,administrative examination and approval,payment of land transfer fee and disposal of overland,etc.It can be said that the renewal of collective construction land is an inevitable issue in the market reform.The entry of collective commercial construction land into the market has the characteristics of regional,commercial and high risk.Although the internal relations of the subject of collective land ownership are mainly governed by public law,the external relations are mainly governed by compliance with private law.This determines that the renewal of the right to use collective construction land generally belongs to civil acts among the equivalent subjects of private law in the field of private law.In view of the basic idea of private law autonomy,the renewal of collective commercial construction land should follow the path of “consensual renewal”.Compared with the state-owned non-residential construction land,the renewal of collective commercial construction land has a higher degree and a wider scope.Public power may not interfere in the case that it does not involve public interests or violate public order and good customs.According to the principle of autonomy under private law,the basic system for the renewal of the right to use collective commercial construction land upon renewal is as follows: Where the two parties have made an agreement,they shall do so according to their agreement;if they have not made an agreement,they shall reach consensus through consultation.In such a renewal legal relationship,the land user submits an application for renewal to the land owner,and the collective as the land owner has the right to decide whether to agree or not.As for the decision-making of renewal agreement within the collective,the relevant public law norms such as the Organic Law of the Villagers' Committee and the Land Management Law should be complied with.