On The Construction Of Collective Construction Land Use Right Transfer System

The demand for land for construction purposes (construction land) in China has always remained growing with the development of market economy and the speeding up of urbanization, and it has been proved in practice that land expropriation, the current only lawful means for the supply of construction lands, not only has failed people's expectation for it to satisfy the urban demand for more and more construction land but also has been inducing a number of serious social problems which will fatally compromise the construction of a harmonious society. Although the decisionmakers have also recognized the huge danger within land expropriation connected problems and therefore become more and more cautious about land expropriation, how to fill up the widening gap in construction land demand arising out of the development of economy and urbanization remains a big issue. Where can we get out of this dilemma? One important point this treatise's writer tries to establish is: in order to eliminate this problem at the roots, the rigorous restrictive provisions in Land Administration Law directly concerning the transference of rights for the use of collectively-owned lands for construction must be modified so as to allow the collectively-owned lands for construction to directly enter the first level market as the subject of transactions. A good signal is the Real Right Law of the People's Republic of China, which was recently enacted by the fifth meeting of the tenth National People's Congress, has made more general and flexible provisions on this issue, hence leaving plenty of room for a possibly more free transference of rights for the use of collectively-owned lands for construction. In this treatise's opinion, while the Real Right Law has recognized the need for transform in present rules concerning the use of collectively-owned construction lands, it, for the sake of avoiding contradictions with the current Land Administration Law, has adopted an abstract and flexible solution which allows the Land Administration Law to modify itself. As this treatise insists, there are two main standards which should be used to judge the rationality of an established legal system, i.e. the inherent harmony within this system and a beneficial interaction between such a system and the real life. And, when we apply these two standards to the rules regulating the transference of collectively-owned construction lands in current Land Administration Law and other laws, the conclusion is obviously "unreasonable". Therefore, the way to eliminate the mentioned problems lies in the modification of these rules.Since the Real Rights Law has left enough room for the transference of rights for the use of collectively-owned lands for construction, this treatise adopts an demonstrative approach as follows: first, the unreasonableness of current rules directly regulating the transference of land use rights is discussed; second, the necessity and feasibility of free transference of land use rights is analyzed; at last, the construction of a new transference system and its instantiation on the level of positive law are elaborated. This treatise is divided into three parts, i.e. preface, text and conclusion.The preface is supposed to bring up the issue and define it. This part intends to give the question, to define the subject of study and to clarify the scope of research.The following text includes four chapters, which are:ChapterⅠ, the Dual Antinomy of Current Legal Design for the Transference of Rights of Collectively-Owned Land Use for Construction. This chapter is supposed to illustrate the inharmony within the current legal rules concerning the transference of collectively-owned construction lands' use rights and their contradictions with the real life, therefrom introducing the argument that they must be changed.ChapterⅡ, the Necessity (Values) of Transference of Rights of Collectively-Owned Land Use for Construction. This chapter, through detailed discussions on the necessity and values of such transference, paves the way for the next chapter's demonstrations.ChapterⅢ, the Feasibility of Transference of Rights of Collectively-Owned Land Use for Construction. This chapter is supposed to find the free transference a theoretical support. The transference of land rights is both the realization of equal protection of State, collective and private property and the requirement of overcoming the externality of land use and of improving the efficiency of resources distribution.ChapterⅣ, the Institutional Design for the Transference of Rights of Collectively-Owned Land Use for Construction.A system is carefully crafted according to the requirement of benign interaction between institutional arrangements and real life and is comprehensively illustrated in theoretical, positive, comparative and historical ways.ChapterⅤ, the Legal Regulation of the Transference of Rights of Collectively-Owned Land Use for Construction. A system intended to perform smoothly in a rule of law society must has legal teeth, so this part focuses on the legal norms with different binding powers on the mentioned transference.The last part is conclusion. On the basis of full discussion on the necessity and feasibility of allowing the rights for the use of collectively-owned lands for construction to be traded, this part concludes that the current legal provisions rigorously restricting the transference of such rights should be changed. Additionally, this part also criticizes the status quo that no significant concern has been paid by legal scholars to the issue of transference of use rights of collectively-owned lands for construction, and calls for more great minds to be gathered to figure out a better solution.