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Collective Ownership Of Land Reform Outline

Posted on:2009-12-17Degree:MasterType:Thesis
Country:ChinaCandidate:Y Q GuoFull Text:PDF
GTID:2206360248450928Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The difficult problem of the property law is the collective land ownership. People have reached the consensus of the necessity and urgency of the collective land ownership, but to the ways of the reforming, people hold different opinions with the privatization, the nationalization, and reforming the current regimes. This thesis insists that any legal systems have the functions, so the contents and the details of the legal system should take the consummation of the legal system into the consideration, besides the requirements of the logics of the legal techniques. Basically speaking, the right of the ownership of the land is decided by the productivity, which reflects the developments of the productivity. However, there should be the intermediaries that can combine the productivity and the land ownership. For China, the intermediary is the market economy which betrays the development of the productivity and allocates the productive materials. Through the research of the history and current situation of the collective land ownership and the equity theories of the historical materialism and institutional economics, this thesis analyzes the contradictions of the collective land ownership and market economy. On the view of macroscopic, this thesis fixes the orientation and the purpose of the reforming of the collective land ownership, then analyzes the three reforming proposals in submicroscopic view with the institution transference theory of the neo-institutional economics. Then, this thesis comes to the conclusion of the current situation that is the reforming proposal. Finally, based on the practical experiences, the author proposes his thoughts and rudiment envisage according the civil law theory and legislative technologies.This thesis has three parts, the main points as follow:The first part is the history and defect of the collective land ownership system. The property law is the fixation method. The contents and the formulations of the property law associate the economic foundation, ethics, historical tradition and the will of the governors. First, this thesis traces the emergence and evolvement of the collective land ownership, and analyzes the reason of the emergence of the collective land ownership pointing out that the collective land ownership is influenced by various factors but the ideology has the final say. Since the introduction of reform and opening-up policy, planned economy has been replaced by the socialist market economy but the heritage of the planned economy- collective land ownership has been kept in the current legislature. The root is the will of the governors, which are the shortcomings of the collective land ownership.The second part is the theoretical foundation and the target of the reforming of the collective land ownership. The arguments of the way of the reforming of the collective land ownership root in the different concepts of the socialist market economy. Hence, in this part, this thesis attaches more significance to the relationship of the market economy and the collective land ownership and analyzes the conflictions and the reflections of the collective land ownership and the market economy's basic requirements to prepare for the solutions. First, through the theories of the driving force of the institutional transition, this thesis comes to the conclusion that the development of the productivity is the driving force of the reforming of the collective land ownership, and defines the principle of giving priority to efficiency with the consideration to fairness. This thesis also demonstrates the validity of the intermediary- the market economy and the satisfaction of the development of productivity from the collective land ownership is changed to the satisfaction of the market economy. Then, according to the principle of the market economy, the author analyzes the market main body which has the independent person, clear declaration of intention, bearing the responsibility, benefits maximization, equal protection, and the modem property rights system which has the clear ownership, clear duty, equal protection, the path of right circulation. Next, based on the accordance of the market economy and the private law and the ways of the public law in the market economy, the author points out the specificity of the market economy of China and needs of distinguishing the public law and the private law, especial the restrictive methods of the public law. The following part, the author demonstrates the contradictions and the reflections of the current collective land ownership and the requirements of the market economy: the restrictions of the independent interest expression of the farmer from the collective land ownership, the waning of the market body of the farmer, the restrictions of the identification of the farmer, the obstruction of the social division of labor, influence of the labor market's mature and perfect, the restrictive and simple hinder of the allocation of land resource and so on. Finally, this thesis concludes that civil law is the orientation of the reforming of the collective land ownership and the liberation of the identification of farmers and the land's economic function is the concrete objectives.The third part is the path of the reforming of the collective land ownership. In this part, the author adopts the institution transference theory, especially the theory of path dependent and evaluates the three proposals of the collective land ownership. The nationalization proposal can not solve the defects of the collective land ownership and will harm the land benefits of the farmer, so it is invalid and unfair. The privatization proposal can satisfies the requirements of the market economy and the right system, but it changes the path dependent theory and has to confront the costs of the changes of institutions. The reforming of the current regimes is the best choice, because it can solve the current problems and save the costs of the collective land ownership. Then, the author analyzes the current legislatures of the restrictive formulations which betrays the civil law doctrines and the policy ineffectiveness and proposes that the law should adopt the market methods not the legal methods in the main body of the market economy. Even if the law has to restrict the ownership, the law should respect the integrity of the ownership and can not deprive the right of disposal, or it will harm the innovation of the regimes and the operation of the market economy. To further the study, the author proposes the new thoughts in the market economy that retaining the disposal right of the ownership and restricting the special qualification of the right can achieve the public interest. Thus, it will satisfy the civil law doctrines that ownership is the perfect property and also satisfy the needs of the transference of the land ownership and is in favor for the innovation of the regimes of the land resources. Studying the ways of the balance of conflictions of the restrictions of the land ownership and the market allocation, the author proposes that China should introduce the land development rights. Finally, based on the substantial carrier of the collective land ownership and the studies and the practical experiences, the author takes the farmer's land share corporation into the consideration, introduces the general ways of it and evaluates the achievements and the problems, so points out that land share corporation restrictions of the transference of the share are not complete reforming ways. Hence, the author proposes that the establishment of the land share corporation, reforms the identification restrictions of the subject system of the collective land ownership and satisfies the requirements of the allocation of the land resources. At the same time, for the concentration of the land from the land share corporation, the author gives the corresponding thoughts and precautions.
Keywords/Search Tags:collective land ownership, market economy, restriction of ownership, land share corporation
PDF Full Text Request
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