A Research On The Legal Problems Concerning The Transferring Of The Right To Exploit Collective Construction Land

Rural collective construction land is the land form comparing to the State-owned land for construction purposes, which scattering in the broad Chinese rural districts, owned by the peasants and could not be used in agriculture. The right of use of rural collective construction land is an important real right in Chinese society, but it had never been recognized in the legislation, Different from the right of use of State-owned land for construction purpose, the transfer of the right of use of the rural collective construction land has been limited, it could enter into the market only by the government's collection.With the development of the economic and society, the State-owned land is going to be exhausted. The method of government's collection to meet the requirement of the market has been questioned in its legality and rationality, and it could not meet the development of the society and the urbanization. Recently, the policy had been tended to favor the transfer of the rural collective construction land. It would be very important in the development of Chinese legislation and judicial practice.Besides the introduction and the conclusion, this paper is divided into 6 parts:The right of use of collective construction land is equal to the state-owned construction land, and both are lower than the right of use of the construction land. The transfer of the right of collective construction land is the marketing transfer of the right of use of the collective construction land, which is the right of use of the collective construction land transfer directly to the land exchange market without the government's collection.The transfer of the right of use of collective construction land is common now in China, the form is variable, and the transfer level is related to the economic development level. Chinese legislation limits the transfer of the right of the use of the collective construction land strictly, and the free transfer is the exceptional and negative case.The article analysis the advantages and disadvantages by collective construction land use rights transfer directly, and Sure the collective construction land use rights transfer rationality and necessity. The transfer of the right of use of collective construction land should apply the doctrine of equal and sharing the interest. There're many problems in the transfer of the right of use of the collective construction land, such as the difficulties of protecting the land, the reducing of the government's fund, the obstacle of the market, etc. Those problems could not be the reason to stop the marketization of the collective construction land and the problems could be settled by relative measures.The perfect and realization of the collective land ownership subject system need the reform of current collective land ownership system, and reform the collective legal person system of the peasants. The "Village Presumption System of the Ownership" would be fulfilled, and the collective legal person has the ownership of collective construction land. Meanwhile, the transfer of the use of the collective construction should follow the scheme and scope of the use of land, which could protect the transfer of the land smoothly.The transfer of the right of use of collective construction land's subjects including the owner of collective construction land, the party who has the right of use of collective construction land and the third party. The methods of transfer including selling, transfer, renting, mortgage. The procedure of transfer is divided into the first transfer and second transfer base on the different subjects' legal position, there're many differences on the operation system.The allocation of the collective construction land divided into external allocation and internal allocation. The external allocation refers to the allocation between owner of the collective land and governments of different levels. The government could join the allocation as the investor of infrastructure. Internal allocation refers to the allocation system of interests of owner of collective land in the parties of collective organization. In the future system design, the allocation of the interest should be realized among the parties of collective organization by the effective fund management and supervision system.