Study Of China's Land Expropriation Administrative Legal Issues

In China today, we are undertaking a reformation of the legal system and selection of economic policy, and during this course, how to improve the peasants' life standard and settle the problem of poverty in rural area, especially for those peasants who lose their land for land resumption by local government without appropriate compensation, is the most urgent task for the government.Under the revision for the twentieth article of the constitution of the people's republic of China adopted at the tenth session of people's congress, the state may expropriate the land, on condition of compensation for the land owner, for the purpose of the interest of the public according to law, which stipulated a basic principle for the resumption of the rural land. However, under the administration law of the people's republic of China on the land, no detailed provision on the land resumption are given, and because of little improvement of scientific research on this topic, the legislature can't provided feasible approaches and method on land resumption.During the course of industrialization and urbanization, plenty of rural land are being taken by local government for the use of city construction, and also in the resumption of rural land the peasants' rights and interests are seriously infringed by the abuse of the power of resumption by local government. From the point of history, our current legal system on resumption of rural land was framed in the old times of planned economy, has fallen behind of the new times of market economy, which has become more and more unreasonable and can't deal with the new items and problems arising out of the new situation, and all these problems resulting from or related to old institution, such as collective appeal to the higher authorities and other extreme methods taken by peasants to protect their land rights, has endangered the social stability. All in all, the item of resumption of rural land has attracted more and more attention from the government, the legislature, the judicial organ, the law researchers and all the public, and this article is intended to reform and rebuild an applicable resumption and compensation system for rural land in order to provide effective administrative and judicial relief for those peasants whose land were expropriated by government, through the analysis of the phenomenon about the land resumption, studying Chinese land resumption institution andother country's by comparison.The article consists of foreword, text, and postscript, and the text includes four parts as follows:The first part: jurisprudence analysis of the rural land resumption. This part defines the concept of land resumptionand Analysizes the characteristics of the land resumption and the impact of the constitution amendment. It also Analysizes the fundamental concept of land resumption, public interests and the compensation of land resumption ,and establishes that the necessity of land resumption is for public interest,feasibility lies in the social obligation, and the legal philosophy is for the balance of state power between civil rights. At last it concludes that the principle of land resumption includes the principle of , the principle of the proportionality and the balance of the interests.The second part: comment on the history and actualities of rural land resumption in China. This part analysizes the history of land resumption, comparative research and status quo, and points out the realistic problems of the land resumption in China today which is characterized by the conflicts in legal system and land resumption being not for the purpose of public interests and low standard of compensation for resumption. All the problems of land resumption result in the fact that the ownership of rural land is not established by law and un-development of construction of legal system in the countryside.The third part: reformation and rebuilding of land resumption system. In the opinion of the author, the construction of legal system for the resumption of rural land should includes the following aspects: resumption for the public interests, perfecting the procedure of resumption and proper compensation for resumption. Firstly the law should lines out the items of "public interests", and secondly the law should stipulate hearing procedure and deal with the resumption on a marketable basis, thirdly perfect the compensation system and distribute the benefits among the local government, rural collective and peasants.The fourth part: study of legal relief for the peasants in the dispute of rural land resumption. This part analysizes the administrative legal relief of the resumption for the peasants, such as administrative review, administrative supervision and administrative appeal. And this part alson studies how to resort the judicial relief for the court to resolve the dispute resulting from the resumption for the benefit of owner of rural land .