Research On China's Land Usufruct System: Interpretation Of Structure And Approach To Improvement

How to construct a scientific and rational right system concerning public-owned land so as to facilitate the optimization of land resource allocation? This problem has been regarded as a bafflingly difficult one of the present time with which China's jurisprudential circles as well as legislators are confronted. In China, land ownerships cannot be transferred in market. The only way to allocate land resource is to create and transfer land usufructs. For this reason, land usufructs are exceptionally important in the system of real right to land. As far as the legislative structure of China's land usufruct system is concerned, there has been much controversy in jurisprudential circles. In this thesis, the author makes a study on the structural transformation of China's land usufruct system in the light of the relationship between public ownership system of land and right in rem in civil law context.The first part of this thesis analyzes and interprets the structure of China's current land usufruct system which comprises usufruct of state-owned land, including right to use state-owned land in urban areas and right to use land of state-owned farm, and usufruct of collective land, including right to contract for management of collective farmland, rural enterprise or institution's right to use collective land for construction as well as right to use collective land for personal house. Compared with usufruct of state-owned land, usufruct of collective land has a number of peculiarities as to object of right, subject of right, way to create right and transfer of right. Owing to these peculiarities, China's current usufruct of collective land and that of state-owned land can be viewed as two types of substantially different rights that constitute a dual-structured land usufruct system. The formation of this system is due to certain historical factors. During 1950s and 1960s, the knowledge system of private law transplanted from the continent of Europe was cleared away, which resulted in the collapse of China's land usufruct system. Twenty years later, the economic reform led to the return of China's land usufruct system. Nevertheless, China's usufruct of collective land is incomplete because it is based on the collective ownership system that lacks autonomy. The incompleteness of usufruct of collective land has then given rise to the dualistic structure of China's current land usufruct system. The author holds that such a dualistic structure is based upon certain public policies concerned with revenue promotion, social security and farmland protection.In the second part of this thesis, the author points out three drawbacks of the dualistic structure of China's current land usufruct system: First, it has given rise to the inefficiency in utilization of land and consequently hampers the development of economy. Second, it sacrifices the interest of the broad masses of farmers, which is obviously unfair. The third drawback of the above-mentioned dualistic structure is that it has resulted in a divorce between legal norms and real life, namely the disconnection of system. In view of the three drawbacks, the dualistic structure of China's current land usufruct system needs to be disintegrated gradually. The logical fulcrums of China's current land usufruct system are state ownership system of land and collective ownership system of land. Undoubtedly, we should adhere to these two types of ownership systems. The new land usufruct system should be constructed within the framework of public ownership of land. However, it is worth noticing that both state ownership system of land and collective ownership system of land currently in use are concepts originating from political economy. They lay emphasis on revealing economic relationships concerned with control and administration of land rather than on expressing legal relationships that arise from domination and utilization of land. In other words, the above-mentioned two concepts, especially collective ownership system of land, are of substantial difference from the concep...