Research On The Commercial Housing Exchanges On Collective Land

For a long time, we are accustomed to distinguish houses by ownership. The ones belong to the public are public housing, and the ones belong to individuals called private housing. With the urbanization of countryside speeding up, and the people's desire of improving living environment has become increasingly urgent, so the commercial housing business has gradually become a hot topic in the society. On the law perspective, residence (house) is a form of fortune, which will not be moved once established. The residences must rely on the land, but the landownership in China has a dual structure consisting of state ownership and collective ownership, therefore, the residences are consisting of the ones build on the state-owned land and the others on the collective-owned land. According to the current Policy and Law for Land in China, the residences built on the collective-owned land can only be houses for farmers in the countryside, so the housing exchanges are strictly restrained. However, in recent years, the sale of houses built on the collective-owned land, the commercial houses, has become a quite common phenomenon. In this circumstance, when disputes occur, how we can cognize the effect of business contract of commercial houses on collective-owned land, and meanwhile how to thoroughly solve the confliction between current land law and policy and the social realities are the problems that we should cope with.There are four chapters in this article.The first chapter mainly introduces the current state of commercial housing construction on the collective-owned land and the analysis of causes. This part starts with concrete cases, describing the current state of illegal development of commercial houses on the collective incremental land and collective stock land. According to the Land Administration Law, article 63, the farmers'collective-owned land use rights can not be sold, transferred or lent to the use of non-agricultural construction, except the ones cause by bankrupt or merge of enterprises, which accord with the comprehensive land use planning and get the construction land by law. Under the circumstance, why there are so many commercial houses built on the collective land in the actual operation? In the second part of this chapter, the author gives a deep analysis on the reasons from the following four aspects: unclear relation of collective land property rights, change of comparative benefit of collective land use, abuse of basic government's power for illegal development and unreasonable collective land compensation system.The second chapter is mainly about the impact of relations between land and houses on the contract mode of purchasing and selling houses. The discussion is divided into two parts. In the first part, the author compares the different legislative modes in Germany and Japan on the relation of land and houses, and expounds the current state of legislation in China. The relation between the land and houses directly influences the effect of business contract of houses exchanges. In the second part, the author briefly analyzes the effect of relations between land and houses on the business contract of houses exchanges on the basis of the statement in the first part. The mode we adopt is an integrated pattern of land ownership and housing ownership, so the commercial houses purchasing and buying contract becomes an abnormal contract for violation of laws, which has impact on effect of the contract. As a result, it is necessary to have a deep discussion on the business contract effect of commercial housing built on the collective land, and it is the basis of the next chapter as well.The third chapter is the key part in the article. In this part, the writer discusses the issue of business contract effect of commercial housing on the collective land, basing on the analysis in the first two chapters. First of all, in this part the author gives a general comment and analysis on the contract invalidation system in China, lists the legal reasons of contract invalidation, and proposes personal opinion on the cognizance of contract invalidation. The writer is convinced that the cognizance of contract is not only a legal or technical problem but also a scientific judgment issue. At present, we should take the criterion of going against the relative social interests effective factors to judge whether the contract is invalidated. According to the actual situation of our country, there are two aspects of effective factors going against the social interests: the first one is mandatory rule relating to law violation and administrative regulations; the second is the ones that damage the social public interests and go against the public order and good custom. After that, in this part, the basis and reasons of business contract of commercial housing on collective land are explained from both the positive and the negative aspects. The contract invalidation theory points out that this kind of contract should be invalidated for its violation of mandatory rules in law, or for its unavailable of object in the contract. The contract validation theory believes that according to the legislative purpose and academic interpretation in constitution in China, the use rights of farmers'collective land can be transferred. Meanwhile, from the perspective of making the contract invalidated for breaking the legal mandatory rules, the effect of business contract of commercial housing exchanges on the collective land in the countryside worth to be discussed as well. At last, through the comparison and analysis of contract validation theory and contract invalidation, personal opinions are proposed on the effect of business contract of commercial housing exchanges on the collective land, and it is believed that the viewpoint of contract validation theory seems more effective in the current stage.The fourth chapter is about thinking on perfecting buying and selling system of commercial houses on the collective land. Judging on the effect of business contract of commercial houses built on collective land is a helpless choice of balancing or relaxing the confliction of laws and policies and social realities. To solve the exchanging issue on commercial housing on collective land, we should start with the system. Through the establishment, perfection and implementation of related systems, we should thoroughly cope with the confliction, and make the commercial housing business going legally and smoothly. In this part, in the purpose of completing the buying and selling system of commercial housing on the collective land, the author proposes some suggestion on the perspective of power object of extending construction land use rights and clarifying the basis principle of land use rights transfer. On the specification of the construction land use rights, the new launched Law of Real Right does not outdo the existed legal frame, and still limits the object of construction land use rights in the extent of state land, in addition, the use of collective land still under related laws in Land Administration Law. However, as to the general principle of rights, the powers and functions of ownership should be consistent. Therefore, from the aspect of power object of extending construction land use rights, the writer suggests that the object of construction land use rights should cover both state land and collective land, so as to change the current state of unequal land use rights in different ownership systems. From the definitude of basic principle on land use rights transfer aspect, it is believed that first, the power transfer of land should be a behavior of act of disposition in the form of contract, and adhere to the principle of contract freedom during the transference. Secondly, land is a special commodity, so its power transference should follow the principle of compensation for value. Thirdly, as a change of real estate property, the power transfer of land should stick to the principle of going into effect after registration.