Juristic Discussion On Transition Of Usufruct Of Peasant Collective Owned Construction Land

The Socialist Public Ownership—that is, the Whole People's Ownership and the Labor Mass Collective Ownership—is practiced in China. The peasant collective land ownership is an important part of the Chinese Land Ownership. As the collective land ownership is legislated as a kind of ownership, it should accord with the civil characteristics of ownership. The whole interpretation of ownership includes four functions as occupancy, use, profits and disposal, and the contents of the rights should remain the same no matter the object is the state-owned land or the collective land.The 43^rd Article in the "Land Administration Law of China" reads "Any unit or person who needs to use land for construction should apply for use of the state-owned land according to law; with exception of the peasant collective owned land of the collective economic organ to which the unit or person belongs approved according to law for running village and township enterprises and peasants' housing, or of the peasant collective owned land approved according to law for village and township public facilities construction and public welfare construction." It could be seen that the peasant collective land cannot be used for construction if not approved by law. This article of the Law deprives the representative of the peasant collective ownership of the rights of choice and disposal of land for construction projects other than those approved by law.The 63rd Article of the Law prescribes that the usufruct of the rural collective owned land cannot be remised, transferred or rented for non-agriculturalconstruction, except that the enterprise acquires construction land according to law which also conforms to the general planning of land utility, but has to transfer the land usufruct according to law because of bankruptcy or mergence. From this, we can see that the present law has substantive restrictions on the transition of usufruct of the peasant collective owned land for non-agricultural construction: there is only one form for the transition of usufruct of the peasant collective owned construction land—village and township enterprises run by their own collective economic organs may have usufruct transferred according to law because of bankruptcy or mergence. There exists inequality in law treatments if we compare it with the state-owned land under the same law mechanism. The present law and regulations form a closed market of the collective land, and the usufruct of the collective construction land has been denied the legal access to market for a long time. The integrative protection of property right is one of the fundamental principles of the civil law in different countries. Under the category of property right within the civil law, the collective land ownership and the state land ownership should be treated equally and protected integratively. Since the usufruct of the state-owned land could be transferred for non-agricultural construction, that of the peasant collective owned land should also be transferred for non-agricultural construction.The 43rd Article of the "Land Administration Law of China" stipulates that the state-owned land, not the peasant collective owned land, can be used as non-agricultural construction land; the peasant collective owned land can be used for non-agricultural construction only if it is transferred to the state-owned land. With the rapid development of our domestic economy, there is an increasing need for construction land. In order to fulfill the demand of economic development, the state must continually transfer the peasant collective land to the state-ownedland through expropriation of land as the only approach.The expropriation of land is a constitutional question. Our Constitution stipulates that "the state, in the need of public interests, may expropriate land and make compensation according to law." Not all construction land is used for public interests like national defense construction; business projects such as real estate, tourism, amusement and commerce also need construction land. To provide busi...