Study On Transfer System Of Collective Commercial Construction Land Under A Perspective Of Equality Of Rights

Collective commercial construction land is the kind of collective land that is for commercial and constructive use. Current policy emphasizes equal access for collective commercial construction land to the market compared to state-owned land, which generate great need for corresponding legal system.Based on the necessity to correct the rural-urban distinction, to release shortage of land supply, to regulate invisible land market, to release value of collective land and to respond the change of peasant status, it is essential and urgent to constitute a transfer system for collective commercial construction land.The perspective of equality of rights requires equal treatment of rights where no essential distinction exists. Rights on collective land and those on state-owned land shall be treated equally, which is the key to understand and analyze the transfer system. Through the concept of property rights and efficiency, the allocation of rights on collective land shall be determined by subjects of market, while the country shall simply provide institutional tools and transfer platform. The development of theory of ownership indicates a trend from owning to using. The right of use of land is not a function of ownership but an independent real right.Land Administration Law of the People’s Republic of China generally forbids collective land to constructive use, with the exception where township enterprises go bankruptcy. However, pilot program had been taken in Beijing, Shanghai, Hebei province, and the like, where local regulations allow transfer of collective commercial land. These local regulations all focus on the conditions, deciders, methods and supervision of such transfer. While respectively makes special regulation on the adjustment of price and retrospective effect and so on.While constituting transfer system of collective commercial construction land, legislation power may be grant to province-standard congress or government after land administration law and real property law has been appropriate amended. The transfer system shall base upon the principle of equal between collective land and state-owned land, the principle of reflecting resource aspect of land and the principle of minimum intervene by the country.The way of said transfer may be divide into four: initial transfer by assignment and lease; subsequent transfer including transfer and sublease; mortgage and exchange, borrow and gift. The parties of transfer shall include all kinds of legal entities. There shall not be special restriction on procedure of transfer while initial transfer shall take the method of auction and biding.The government shall not take too much intervene to the price of land, while non-mandatory model price system is encouraged. The government shall not impose mandatory approval of such transfer, due to the right shall be assign to subjects of market such as the peasants. The reason to forbid collective land from being used for commodity buildings do not on solid grounds. To protect farming land, to maintain the monopoly interest by local government and such reasons shall not constitute sufficient grounds to forbid commodity buildings built on collective land.The assignment of revenue generated from such transfer shall be determined by the transferor, while the government may impose proper tax. Concerning the status of land market, the said transfer system may have retrospective effect to certain extend, in order to provide legal protect to former transfer.