On The Collective Construction Land Transfer System, And Its Perfect

What lies at the center of the property right is immovable property right, whose core in turn is the land property right. Nevertheless, the essential part of the legislation of property right in present China is that of the circulation of collective-owned rural land. The stipulation of the right pertaining to the collective-owned land in present Chinese law is imperfect, and its way of circulation is disputed. The ideal of legislation cannot keep up with the current macroeconomic situation. Since, in reality, the most intriguing transfer of tenure of the collective-owned land, which is also of the most practical significance, is no other than the transfer of the tenure of the collective-owned construction land(referred to as collective construction land in the following), no matter it is for the nation, the villagers or the village committee, or for the collective economic groups, this thesis will be focused on the right and circulation of the collective construction land.The author of this thesis thinks that three aspects need to be specified on the problem of the market circulation of the collective construction land. Firstly, the enactment and ascription of the content of the right must be clarified. The content of the right should be properly and amply enacted. Moreover, the principal problem to be solved is the clarification of the subject of the right. From the perspective of economics, the market dealings should abide by the value regulations. The market circulation of the collective construction should be no exception. From the perspective of the law, the superstructure is subjected to economic base. The stipulation of the law cannot obliterate what the value regulations demand to be embodied. Thus the law must entail the right of the property-owner. The value of the law as a social regulation lies in the fact that as a weighing apparatus, it can judge the ascription of the value interest based on the presuppositions. However, from the perspective of the good development of the society and people, this enactment of the law should be friendly rather than being distorted and unjust. Secondly, the distribution of the interest, or in other words, the value distribution, of the circulation of the collective construction land should be specified. This is the most essential problem. Tenure is a kind of right, but interest is a more important right. The material in itself does not have any value, and it is through exchange that it acquires its value. The right won after the exchange is the culminating right of the property right.If the right is enacted but its enforcement cannot be guaranteed, or compensation cannot be claimed whenever the right is violated, the law is by no means complete. Therefore, when the legislation of the transfer system of the collective construction land is being enacted, it must ensure that the owner can obtain legal, reasonable value interest.Thirdly, the relevant procedures of the enactment of the transfer of collective construction land are also of great significance. The justice of law should first be embodied in the justice of the procedure. The current procedure of the transfer of the collective construction land is a typical example of the injustice of the procedure. It has been stipulated by the law that the ownership of the collective construction land is the collective, thus in the nomological sense, the land is owned by all the members of the collective. Nevertheless, in the procedures ranging from making the decision for the transfer to its pricing, they have not been asked to exercise any right.The right-holder is in a position of being controlled, dominated, which is accompanied by the loss of the right of speech. The emergence of the procedure is for the right-holder to exercise his right legally, rationally and conveniently. If the will of the right-holder cannot find free expression in the enacted procedure, such kind of procedure can be nothing but evil.Although The Property Right of People's Republic of China(referred to as The Property Right in the following) has been passed and is to be put into effect, and the new property right is greatly progressed compared to the old one in terms of the stipulations concerning the relevant right, however, in terms of the right content, way of circulation and interest ascription of the collective construction land, no concrete and significant breakthroughs have been made. The Property Right only makes stipulations pertaining to the state-owned construction land, and it is enacted in item 151 that the collective-owned land when used as construction should accord with the land administration law. Perhaps the hope should be placed on the corresponding laws, regulations of The Property Right. On fundamental law cannot solve all the problems. However, it can be deduced from item 151 that the government is trying to maintain the current way of circulation and compensation of the collective construction land. The starting point of this thesis is, based on the current law and the relevant stipulations found in The Property Right, to provide a comprehensive analysis of the current right and supposed right of the collective construction land by combining nomological principles and economic principles, its flaws in the present way of circulation, and some solutions will also be offered.