On Land Conversion System

The land acquisition (hereinafter "acquisition") in China was set up in planned economy period. It has done great contribution to the economic development of China. With the transition from planned economy to market economy and its further development, the institution of land acquisition (hereinafter "institution") do not meets the present requests any more. So the reform of the institution is ought to be on the timetable.The first part, general narration of the institution. Although different countries have different objects of acquisition, the comprehension of the acquisition is similarly each other. i.e. acquisition is a powerful and compulsive activity, which also should abide by principle of public interest, legal procedure and reasonable compensation after acquisition.The second part, analysis of theories on acquisition. Any institution is based on a certain idea, but the ideas between European countries and our country are different from each other. In European countries, the institution is based on "obligation on ownership", which means to contain its extremely development. While that of its counterpart is based on "nationalism." In China, protective strength of existing private right is still insufficient, let alone "obligation on ownership".The third part, analysis of the problems of the institution in our country. In this part, by reviewing of the setting-up and development of the institution in our country, revealing that there are many problems in the existing institution owing to the historical influence. First, the provision of the " public interest" purpose is not clear. Acquisition authorities are apt to enlargement of "public interest" , which is often taken as excuse for acquisition; Second, owners of the collective land and their legal status is not clear. The current related law provisions express that there are three kinds of owners for collective land, which are The farmer collectives' , the village farmer collectives' and the whole villagers'; Third, procedural blemish in the acquisition. There are not detailed procedural provisions for current institution. During acquisition, the related parties have no right to participate in. The mechanism of dispute settlement is not perfect and lack of independence.Becauseof low compensation and single settlement, a series of side-effect is produced such as: living instability of farmers >> ineffective use of the land.The fourth part, the core of the whole paper, discussion of the reform of the current institution. Which cannot keep up with the social development and must be changed, but idea goes first. (1) As far as reforming the institution is concerned, two premises should be followed: one is change of the idea first, because the government is not a fancier of the power but a servant forever,- The other is to enhance awareness to protect farmers' land property. (2) Being subjected to the law, namely the government in acquisition process must is be subjected to public interest due procedure ^ duty and the protection of real right etc.The concrete reforms are: (1) perfecting the definition of public interests. The public interest, a value judgment, is not only abstractive, but also changeable. In the entity law, the public interest can be regulated by generalization and enumeration and confirmed by hearing procedure as well. (2) Raising the compensation standards and increasing the settlements. The principles of compensation adopted in the world are: Complete compensation > incomplete compensation > very compensation. In regarding to our country, the theory of special sacrifice and the principle of complete compensation should be followed as to practice of the fairness and justice.The settlements such as joining partners > starting a career and the social insurance should be created.(3) Perfecting acquisition procedure. Establishing hearing procedure for public interests and enhancing the right of participation of the parties concerned; Increasing inquisition procedure and separate system between land management and dispute arbitration. (4) Perfecting the legal status of owners of ownership. Currently, the assertions concerning ownership are: The stated -owned ^ privatisation^ the three(stateN collectives ^ the farmers) co-owned, and reforming the rights of land usage only without change of the village collective ownership. According to our national conditions, the writer approves the last assertion, but need setting up a complete civil organization to manage and exercise the rights of village collective land.