Study On The System Of Recovery Of The Right To Use State-owned Construction Land Due To Idleness

Since the 21th century,China's real estate industry has developed vigorously.Accordingly,the real estate market regulation and effective guidance has abstracted more and more public attention.Recovering the right to use the state-owned construction land due to idleness according to law has become an important means to curb land hoarding and excessive price rising.Although the recovery of the right to use the state-owned construction land due to idleness has already existed in China's land system,it has not become a standardized expression.Discourses such as“reclaiming the right to use idle state-owned construction land”,“reclaiming the right to use idle land” and “reclaiming idle land” and so on have been used in related legislation and normative documents.These expressions focused on depicting the fact that the original state-owned construction land use right holders have no right to re-use the construction land,which failed to establish the usufructuary attribute based on the state-owned construction land use right and to use standardized legal concepts to expose the logic of changes in the right to use construction land.We suggest that rendering the recovery of the right to use the state-owned construction land due to idleness into the thinking of legal norms is the foundation of improving the relevant laws,regulations and normative documents in the future.In this process,several point,namely the right basis,generation logic,realization procedure and legal consequences of the right to use the state-owned construction land due to idleness,needs to be taken seriously.However,the current scholarship has not paid enough attention to this conception.Based on those weaknesses in theory,this paper analyzes the practice pattern,standard mode and mechanism of the right to use the state-owned construction land due to idleness,and the concrete path of the operation of the molding system.This paper systematically combs the cases which involved in the recovery of the right to use the state-owned construction land due to idleness in approach of judicial data analysis,showing the real state of this system in operation in a comprehensive way.In judicial practice,the time and geographical distribution of cases are very concentrated;In most cases,the courts follow the "administrative penalty path" to hear such cases,and regard the recovery of unused state-owned construction land use right as the result of administrative penalty power exercised by natural resources departments.The confusion and contradiction in administrative law enforcement and judicial practice are very obvious.By investigating the actual operation of the recovery of the right to use the state-owned construction land due to idleness,this paper figures out that the root cause of the problem of the recovery of the right to use the state-owned construction land due to idleness in China lies in the application of the “power-driven” systematic model.This model is based on the state's management of construction land,while administrative punishments are the main means,and the final elimination of the right constitutes the result.It emphasizes “vertical subordinate compulsory”,relying on the exercise of public power to achieve the purpose of standardizing the rational use of state-owned construction land,showing the characteristics of unilateral,mandatory implementation,free legal consequences and uncertainty of disposal results.In practice,this “power-driven” system model is faced with the dilemma of the dislocation of the law enforcement subject,trapped in the bog of “campaign-style law enforcement”,lack of protection for the relative and interested parties,so that it cannot draw strength from the mature civil law system in the future development process.The system thus formed cannot be incorporated into the civil law system in a favorable manner and draw institutional resources from the mature civil law system.As a result,it faces the necessity of upgrading and transformation.In order to provide legal rights structure and resources for the market to play a decisive role in the allocation of land resources,the “right exercise” system model driven by rights and obligations,must be the direction for transformation.This model emphasizes “horizontal right interactions”,which promotes the formation of new land order with rights,obligations and responsibilities.In this model,the recovery of the right to use idle state-owned construction land is returned to the category of private right,which is interpreted as the exercise of the right of termination.From the connotation and extension of this right,the legal nature of the right of termination is embodied as a forming right with the characteristics of unilateral,specific,strictly limited,dependent and non-continuous.Based on the principle of mature termination right,it is possible to further clarify the subject of the recovery of the use right of state-owned construction land due to idleness,the specific restrictions on the exercise of the right,and the corresponding legal consequences.Compared with the“power-driven” model,the advantage of the “right-exercise” one lies in overcoming the drawbacks of power exercise,which is beneficial to the interests of the right to use the state-owned construction land due to idleness and interested parties,and in realizing the connection with the existing civil law system.