A Research On The Compensative System For Domestic Land Acquisition

The compensation of land acquisition is an important content in the process of land acquisition. To establish a perfect compensative system of land acquisition has became a cosmopolitan tendency. The domestic compensative system of land acquisition has taken shape in the period of planned economy, which possesses intense color of politics. The design of the system itself is very irregular, so it is necessary to enact an independent law of land acquisition. Therefore, currently, the theoretical research on the domestic compensative system of land acquisition has a profound meaning. The author hopes that this thesis would give some contributions to the research on the compensative system of land acquisition.This thesis is divided into four parts.In the first part, it is discussed the features and jurisprudential basis of the domestic compensative system of land acquisition. First, it is discussed the features of the domestic compensative system of land acquisition, the specificity of subjects, the comprehensively of the objects, the legitimate compensation and the irreversibility of the compensation of land acquisition. Then, bases on the induction and analysis of the theories of vested rights, bounty, public levy, social duties and the special sacrifices, it is discussed the theoretical value of the theory of special sacrifices to the domestic compensation of land acquisition, which mainly lays in the following: First, the conducts of land acquisition are the necessary sacrifices for maintaining and realizing the public interests, so the compensation of levy is different from the damage compensation which based on infringement acts in the civil law, and different from the state administrative compensation caused by the administrative malfeasances, which based on the compensation of legal conducts of administrative acquisition. Second, the actual beneficiaries of the conducts of levy are the state and society; state should undertake the obligation of administrative compensation as the representative of the society. Third, the lost that the state pays to the collective land obliges should according to the principle of special sacrifices to balance mostly the economic benefits of special preys and replaced undertakers, break through the limitations the limited compensation of domestic administrative succor and perform the market compensation principles. Thus, we can make sure that though the conducts of levy are administrative conducts, but the compensation for acquisition should perform the civil principles to ensure the interests of the collective land obliges.In the second part, it is generally introduced to the experiences in foreign compensative systems of land acquisition, which include the following four parts: 1. The establishment of the principles of land acquisition. In the countries, there are specifically regulated principles for the compensation of land acquisition in the law of land acquisition. 2. The scopes and standards of the compensation of land acquisition are relatively scientific. The scopes of the countries not only include the direct loss, also the indirect loss. The standards of the compensation of land acquisition are determined according to the market price. 3. The methods of the compensation of land acquisition are manifold. Expect the compensation of monetary form; the countries also take the compensation of material object form. 4. The perfection of the processes of the compensation of land acquisition, the countries in the universe all regulate the processes announcements, hearing of argument, negotiations and disputing adjudications, which guarantee the rights and interests of levier.In the third part, it has discussed the current situation and existing defects in the compensative system of domestic land acquisition. Primarily, it has introduced to the regulations about the compensative system of land acquisition in standardized documents and local laws, such as Constitute, Managing Laws on the Land and its relative laws and decrees, regulations like Methods for Announcement of Land acquisition, and The Decisions on Strict Land Management under Deepen Reformation by the State Council. Secondly, it has concluded the defects in the compensative system of domestic land acquisition from six aspects: 1. The legislation basis of the compensative principle of land acquisition is obscure. 2. The compensative range of land acquisition is too narrow. 3. The compensative standards of land acquisition are too low. 4. The compensative standards of land acquisition are single. 5.The compensative procedure of land acquisition is not fair, lack of the procedure which the attendance of the person who has been levied, and relieving procedure, and the compensative procedure for acquisition is weak in operation. 6. It is not unreasonable for the assignment of compensation. The compensation for land belongs to the collective and economic organization in the village, while the farmers as the direct user and operator of the collective land stay in a disadvantaged position for all the time during the assignment of compensation, and most of the farmers only can share limit profit, which is far less than the loss, and the living insurance effect to the farmers of compensation for land acquisition is hard to give a full play.In the forth part, in the view of the existing defects in the compensative system of domestic land acquisition and learning from the experiences in the compensative system of land acquisition in foreign countries, it has raised the suggestions to perfect the compensative system of domestic land acquisition. It is suggested that it would perfect the compensative system of land acquisition from the following four aspects: 1. Lay down an independent Laws on Land Acquisition as soon as possible. 2. Enlarge the compensative range of land acquisition and increase the compensative standards. The compensations of land acquisition not only include the compensative charges, such as currently performing compensation for land, allowance for settling, above-ground buildings and crops, etc., it also should conclude the compensation for losing the right of use, the loss of operation, the loss of damage and for social guarantee. Confirm the compensative standards of land acquisition comprehensively in district. 3. Reform the present compensative methods of land acquisition. Adopt the methods, like improving employment, compensation in bond or equity share, compensation in replacing land, settling for agricultural producing and immigrations of strange land, and establish the insurance funds for the farmers who have been levied, etc. to guarantee that the living standard the landless farmers will not decrease because of land acquisition, and the livelihood can be ensured in a long term. 4. Perform the compensative procedures of land acquisition and relieving system. Insist being openly consultation, and determination of jurisdiction, to guarantee the right of knowing, attendance and relieving of the farmers who have been levied. Furthermore, perfect the adjudicative mechanism for compensation of land acquisition, in the entity laws and procedure laws, it has clearly defined that the administrative reconsider and administrative litigation procedure on refusing to the administrative adjudication for compensation of land acquisition.