| Market entry of collective construction land for commercial use constitutes an important part of the rural land system reform.On December 31,2014,the General Office of the CPC Central Committee and the General Office of the State Council issued The Opinions on Pilot Work of Rural Land Acquisition,Market Entry of Construction Land under Collective Management,and Rural Residential Land System Reform.The pilot on market entry reform of collective construction land for commercial use has been conducted in 33 counties(cities and districts)including Daxing district in Beijing,Nanhai district in Foshan of Guangdong province,Dazu district in Chongqing municipality,etc.Meanwhile,the Standing Committee of the National People's Congress has decided to adjust the implementation of the relevant Resolution of The Law of Land Administration of the People's Republic of China and The Law of Urban Real Estate Administration of the People's Republic of China related to rural land acquisition,market entry of collective construction land for commercial use,and rural residential land management system.The Law of Land Administration revised on August 26,2019 has confirmed some results in the pilot.The amendment of The Law of Land Administration is an important measure to transform the central government's reform decision into legislation,and also a refined summary of the experience which are replicable,promotable and beneficial to law amendment.This provision,in essence,confirms the legal status of the farmer as the main body of land supply in the construction land market at the legal level.Therefore,to some extent,it removes the legal obstacles for promoting the collective construction land for commercial use to enter the market.However,the amendment of The Law of Land Administration does not fully solve the key issues of the reform,i.e.insufficient supply of general legal regulations on property right,transaction and distribution,reflecting the lack of a systematic regulation framework.Thus this paper intends to provide through theoretical study.Promoting the reform of market entry of collective construction land for commercial use is a problem-oriented process.This process should accurately and thoroughly solve the dilemma both in theory and practice.Actually,this reform has experienced the following stages: Spontaneous local pilot,primary national pilot,pilot with legal authorization,legal adjustment and confirming and further exploration.With the deepening of the reform,the following regulatory requirements have been formed: systematic legal regulations have been introduced to realize the expected goal;inclusive regulatory framework is used to cater to varied demands of different regions;and diversified property rights regulation is used to balance the interests of different subjects.However,the legal regulation framework for collective construction land for commercial use,which is composed of the central legislative system with The Law of Land Administration at its core and the local standard system based on the Resolution of authorized pilot,is facing its dilemmas in practice,such as unclear regulation of property rights,imperfect regulation of market transaction,and non-systematic income distribution regulation.The basic reasons of the above problems are the lag-behind of the basic concept of legal regulation,the deviation of understanding on the function of legal regulation,and disordered logic of legal regulations on the issue.Therefore,in building up the systematic legal framework characterized by clear regulatory concept,well-conceived function,clear objective and reasonable structure,it is imperative to face the above dilemmas in practice and identify the root causes in theoretical studies.The inherent rules of development should be followed in building up such a legal system.Based on the property attributes of land resources in contemporary society and the collective land ownership system under the public land ownership,targets and tasks of the reform need to justify legality of regulation,and also point out the overall direction and path for building a complete legal system.Therefore,moderate intervention,safety in transaction,equality in interest sharing and fair distribution of earning constitute value evaluation standards of the regulation system.All these standards can be realized by sound functioning of a system incorporating legal rights,including collective property rights of agricultural workers,rights related to membership of a collective,rights of market entities related to land usage and rights of the state to intervene.To achieve the goals of policy and market regulation in this regard,a legal system framework been established,with property right regulation,market transaction regulation and distribution of earnings as three key elements.The improvement of the regulation system of property rights needs to be in line with the practice.Solving the existing problems in practice and theoretical research of the regulation of the property rights lies the foundation to the follow-up improvement.To solve these problems,the private law regulation system with the property right system at its core should define the execution subject and specify the functions of the use right of collective construction land for commercial use;meanwhile,with planning and use control at its core,the public legal regulation system should define the scope,usage and intensity of land use Specifically,the improvement of law regulation system with property right system at it core focuses on the following three aspects: Firstly,while amending Regulations for the Implementation of the Land Administration Law,the usufruct attribute of collective construction land for commercial use should be established indirectly by approving related provisions in the Civil Code.Besides,specific provisions on land use right should be added into the Civil Code at the right time.Secondly,owners of collective land stipulated in laws and regulations should be further clarified,and conditions for all kinds of trustees to use collective land should be defined.Thirdly,the property and use rights need to be improved by creating new ways of exercising rights of disposition and improving the corresponding rules.There are also three key aspects in improving the public legal system that targets overall planning and land use control.First,the scope of land that will enter the market should be identified to ensure that the policy only applies to land outside city planning zones and increases the potential of the land market.Second,it is necessary to give priority to industrial or commercial projects related to agriculture,prohibit construction of commercial housing units and explore government-subsidized housing projects to ensure reasonable usage of land.Last,the term and intensity of land use need to be stipulated in line with the regulation of state-owned land to control the land utilization efficiency.Basic structure of the regulation system and specific elements should be clarified to improve the system itself.On one hand,upgraded general regulation system is needed to respond to risks generated by market failure after the entry.The existing general regulation system has the following problems: lack of market access regulations,inconsistent prices and disorder in regulation.These problems can be addressed through the following methods: first,refine the regulation system of market access with the focus on intermediary agencies;second,set up a clear system to regulate prices in transactions by unifying benchmark land prices in urban and rural areas,completing the evaluation system of land price,standardizing procedures to set the floor price and build a mechanism to protect land price after market entry;third,ensure order in market transaction by establishing specialized land transaction platforms and improving the verification of contracts.On the other hand,it is essential to improve special regulation system to realize the goals put forward in reform policies.To tackle problems in the existing special system,such as ambiguity in decisions and inefficient mode of reclaiming land use right,it would be better to adopt a more efficient decision-making mechanism by identifying decision makers,optimizing procedures and prioritizing tasks.A complete system of reclaiming collective construction land for commercial use can be established by specifying conditions and procedures of reclamation.An effective regulation on income distribution can guarantee just and reasonable allocation of added value after market entry.In existing pilot projects,after the land entered the market,there have been several problems in income distribution in terms of the nature of value added tax,tax collector,taxation proportion,criteria of internal distribution,legal constraint of allocation schemes and management of retained earnings.The problems mentioned above reflect the flaws in the regulation of income distribution.Based on identified subjects and types of income distribution,it is imperative to optimize the external and internal regulation systems of income distribution after the land entering the market,solve the problems in pilot projects and settle disputes in theoretical research.To upgrade the external system,priority should be given to improving VAT collection mechanism to promote transformation from external distribution of earnings to taxation-based allocation.The focus should be laid on tax collectors,standards of taxation,norms and procedures of collection and other areas.At the same time,referring to the existing system of land VAT collection,it is necessary to carefully examine the features of the pilot projects so as to establish such a system with unified interest rates in urban and rural areas.To improve the internal distribution system,it is essential to set clear standards of the certification of collective members,identify the red line of distribution and establish mechanisms to manage collective retained earnings and supervise distribution process.The building of a legal system to regulate market entry of collective construction land for commercial use is a systematic project as well as a dynamic process.Thus,it is crucial to set up a well-established mechanism that is in keeping with the constant development of theories and practice. |
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