On The System Of Constraction Land Use Right Term

The period of construction land use rights, which means the period that theobligee have right to use state-owned land for construction while maintainingbuildings, structures and ancillary facilities on it. When it comes to the establishmentof construction land use rights for state-owned land, grant and allocation can beconsidered. The Allocation of construction land use rights has an indefinite nature,while "Provisional Regulations" provides the maximum term of the transferring ofland use right. There are40years,50years and70years according to the differenceuse of land. The transferring of construction land use right set the maximum term,meanwhile the buildings and ancillary facilities’ ownership keeps an indefinite nature,all these certainly lead to a series of problems which concludes whether the expiry ofthe period of construction land can renew，and how to deal with the ownership whenthe period of buildings on the ground is not renewed. Existing laws and regulationsmake provision for the system of construction land use right term, while there aremany flaws in the theory and in practice, causing widespread criticism from scholars.This paper tries to analyze the system of construction land use right term in thecontext of land use rights reform, clarifying the impact to the regulations from ourunique mode of property rights and the priority doctrine of state ownership. Bymaking clear of "statutory continued option"，to protect the human rights of land use,limiting the abuse of state power. It helps to improve the system of construction landuse right term in the path of right balance, providing a reference for the future ofChina’s legislation.In the paper, in addition to the introduction, it is divided into three parts, about30,004words long.Part I: The general theory of construction land use right term system. By thedefinition of construction land use right under the term system, it clarifies the basiccharacteristics of construction land use right. On this basis, the system of constructionland use right term concludes the renewal system and the ownership system ofnon-renewal buildings on the ground, which is a product of the land use right reform.On the one hand, by scanning the system of "separation of ownership and use" and"compensation for the use", it helps to create a clear relationship between the systemof construction land use right term and two above. On the other hand, through theanalysis of the relationship between land and ancillas on it in the main civil lawcountries, clarifying the unique structure of property rights. Based on our uniquesystem of construction land use right, it helps to provide theoretical support byimproving the system of building attribution. Thus, it is my honor to discuss theformation of the system of construction land use right term.Part II: The legislative status of construction land use right term system, andanalysis of inadequate and cause."Property Law" creatively makes the distinctionbetween residential and non-residential real estate, and it stipulates the residentialconstruction land use right term can automatically renew when expiring. However,"Property Law" has adopted an evasive attitude towards whether paid for renewal,renewal criteria, renewal period, and renewal procedures. What is worse，it is in the hands of state to exercise the renew discretion, it may easily turn down the requestfrom land use to renew the term in the name of "public interest". While the lack cleardefinitions and procedural safeguards of "public interest" may easily lead to the abuseof state power."Provisional Regulations" stipulates if the term is not renewed,buildings on the ground would be taken by the state for free. According to the transferof the use right, this single mode, Land users face a dilemma-pay huge amounts ofland premium and then renewed or buildings on the ground are taken by the state forfree, which is a blatant denial of the building condominium. That is because thestate’s double identity of the managers and owners, so that it shows a clear tendencyof ownership priority. Due to a tendency to quick success in setting the system ofconstruction land use right term, the attribution system of non-renewal buildings onthe ground chose a legislation against the model of real estate. It is a total conflict andchaos in the theory and practice.Part III: Suggestions for the system of construction land use right term.Improving the system of construction land use right term by three steps. First,clarifying the statutory right of renewal for land user. This is the most important partof the process in improving the system, in order to guarantee the smooth renewal. It isrequired to set reasonable criteria based on the concept of rent and allows an annualrenewal. Meanwhile, refining the connotation of "automatic renewal", according tothe concept of compensation for the use,"automatic renewal" still has to pay therenewal fee, but it is relatively convenient in the renewal process. Secondly,clarifying the border of "public interest", to set a reasonable determination procedure.Making restrictions in ownership priority doctrine, to prevent behaviors against theinterests of land users in the name of "public interest". Therefore," Statutory right ofrenewal " can be realized by doing it. Finally, it comes to the ownership ofnon-renewal buildings on the ground. Based on the principle of balancing theinterests of both sides, and taking "dualism" system of the land and ancillas on it intoconsideration, it should be clearly stipulated that the ownership of construction whenthe term expires still belong to the construction land user. When non-renewal orrenewal is not approved, it should give compensation claims to construction landusers, allowing them to get compensated by the landowner in accordance with thecurrent price. At the same time, allowing the right of requesting an extension to beprior to the compensation claims of buildings on the ground, in order to achieve thebest use, to prevent the dilemma where state can not afford to compensate. Throughthe closed trinity system, improving the system of construction land use right term,with the balance between the land of owners and users, to achieve the protection ofuser’ rights.