On The Establishment Of Localized Legal System Of Land Development Right Of China

The legal system of land development right was created under the background of the land planning combined with land market.It will inevitably lead to the value increment of a quantity of land ownership while make other land ownerships'value diminution when it is necessary to implement land use planning.The land development right legal systems were primarily established in some western countries in order to maintain land ownership equally and to achieve new balance of interest under the new market rules.Land development right can not only make land ownership equal under the circumstance of land planning and land use control but can also revive the land market mechanism.Land ownership is the primary right of land property of country which implements the private ownership of land,but China's public ownership of land determines state-owned land and collective land ownership and land use right constitute the major land property rights of China.The land development rights originated in the west are only refers to use of land,floor space ratio,build volume or permitted space and height as the result of the limitation on their traditional land ownership by public power are far less than that in china.But after decades,the practice and evolution of land development right systems had proved that the land development right could be a dynamic and open concept,it could possible to extends the scope of the right content in accordance with national institutional foundation and institutional goals required by different social realities of each country.Every public intervention elements can become a specific content and goes into the scope of land development right as long as it play a direct role on the market value to land property under the background of public ownership of land.The land use and planning system in China has been sound and strong under the premise of the land public ownership and previously influenced by the planned economy system.Market eoonomy framework of emerging and especially after Party's 3rd plenary Session of 18th conference,The conditions and necessity to establish land development rights legal system have been met in China and it seems urgent.The following problems of land reform must be clearly understood and answered in theory concerned to the collective land system:the compensation standard should be based on the current agricultural use of land or be in accordance with its replanning of construction usewhen land expropriation happens to collectively-owned land;how to theoretically explain the huge diversity of land use amongst different collectively-owned ownership of land in the tendency to establish an unified urban and rural construction land market and allowed collective land of construction use to be traded in the market;how to embody the principle of equality amongst different collective land ownership under the trend of marketization of the collective land;is it necessary to limit the highest duration of land use right and who shall have the right to decide the highest duration when allowing collectively-owned construction land use rights to enter the market;how to explain the legitimacy if provides government to enjoy the right;what is the exact nature of construction land control index as a tradable right in China;problems as so forth.These problems above are related to the theoretical basis of land development rights and urgent to be answered and make reasonable explanations on the establishment of land development rights system.As far as state-owned land system of urban area is concerned,these following problem must be clearly understood and answered in theory:how to deepen the reform of the state-owned land use right system and improve the market mechanism for the paid use;How to explain the serious shortage of secondary land market of state-owned land reasonably and how can we solve the problem of the atrophy of secondary land market;how to transform the administration model into market allocation model of land use and building volume which may of great value so as to achieve the anti-corruption institutional goal eventually.The establishment of land development right system could solve these practical problems and provide with theoretical explanation.Although China has not yet established land development right systems specially,but China had already introduced a number of policies and regulations in the nature of land development right to answer to the realistic demand of society.These policy explorations include the"land ticket"transaction system pushed by Chongqing Municipality,construction land index trading system of Chengdu.these reform explorations of construction land index implemented is actually indicate the real need and urgency for establishing the legal system of land development right in China.The institutional function and the.coverage of legal system of land development right in China shall be much bigger than that in western countries because of we are establised on the system of public ownership.Apart from some general content such as land use and planning elements are included in land development right,some other land management factors arising from the intervention by public power are also closely associated with the economic value of land property.Therefore,the land development right of China are refer to property rights which not only include the land use and planning but also contain other elements with nature of public power.The legal system of Land development right are based on the public-owned land system,it consists of two basic rights and their operations.The first is the right to make a specific land development right;the second is the land development right formed and fixed by the first right.The nature of the first right is essentially a public exclusive power.The state limits intact and absolute collective land ownership or land use right to both collective-owned and nation-owned through exercise of state's public power with regard to the nature of right,land use and planning conditions and other elements from the fiction of public power to make land development right.In a word,all the administrative elements which can effect the value of land property should be entered into the content of land development right.The right nature,right scope,right proportion and content of land property which play a basic role under the land market model are all decided by the specific land development right.The content and scope of land use right of each are in need of a particular and fixed development right to participate in.Thus,the state exercising the power of making land development right is equal to create and form a specific land property right that can buy and sell in the market instead of land ownership under circumstance of which land ownership are not tradable.The second is the private rights of land development made through excise of the first state right above.The first land development right are responsible to do right fiction and grant to land property,they are formed and fixed land development right of fiction and relatively independent for transferring under certain conditions.When the content of land development right are demanded to changed with the variation of real estate market or adjustment of industrial structure,the owner should apply for extra development right and to be allowed to purchase it.For instance,the owner of allocating land use right require to purchase an additional development right in order to make his land use right be tradable in land market;the owner of non-profitable land-use right can purchase a "profitable land use" from the state;the real estate developer can purcharse additional building volume(or plot ratio)from the state;or owners of any other land property right are able to sell their remaining land development right to another in the market.All these operations above are significant forms of land development rights market.The land development right system of collectively-owned land and national land are quite distinct from each other due to the difference of the land legal system between urban and rural of China.The collectively-owned land development right are granted to both the land-use right and the land ownership;the national land development right are granted to the land-use right only.The contents of collective land development right are including "whether or not to trade in the market","the maximum years of right duration","the mode of sell" and the like besides "land use";The contents of national land development right are including the nature of land use right such as allocating land right or marketing land right(in other word is whether to be approved to trade in the market),building volume and other planning conditions besides land use and maximum years of right duration.Generally speaking,the legal system of land development right based on the land public ownership of China should include the following four sections regardless of collective land or state-owned land:Fisrt,the system of creating land development right,which should consist of the subject of creating,right scope,right nature,legal forms and procedure,basic rules of right-creating.Second,The market operation system of land development right,which should consist of the regulations of purchasing an additional development right from the state,the market operation rules of sell,rules of market pricing,transfer and compenstate for trading of land development right as well as procedural rules.Third,the market transaction service system,which should consist of cultivating and qualifying market service subject,evaluating the market price,enacting standards of market pricing and procedures and regulations of land development right.Fourth,the supervision system of market transaction of land development right,which should consist of the subject of supervision,Regulations of conviction and punishment of illegal trasactions.To sum up,it is not only an urgent need for the reality of society and economy of establishing land development right system in China but also an system innovation based on public land ownership,China need to establish the institutional framework and system as soon as possible and to improve the system gradually in the process of practice.Anyway,the research on this field in China is shoulder heavy responsibilities and still have a long way to go.