On The Usufruct Transference System Of Collective Construction Land In China

2015, began with the end of1978, is the37th year of China’s rural reform.During the past37years, the economy of China`s rural area has developed rapidly,as well as the living standards of farmers. Especially since the full implementation ofthe New Rural Construction program, the rural food production, infrastructure,farmers’ income, and protection of farmers`rights has achieved tremendous progress.Despite the fact that the overall situation is gradually moving to a better state,obstacles which impede the further development of China’s "Three Rural" still exist.Such obstacle is mainly reflected in the “urban-rural dual structure” which isrestricting the integration of urban and rural development.William Petty, founder of the British classical political economy, has a famoussaying,“Labor is the father of wealth, and land is the mother of wealth.” Land forfarmers, it is very important means of production. Therefore, to get rid of urban-ruraldual structure, to further promote the new rural construction and development, and toreform the current system have become a core issue of land, which cannot beavoided.Since the establishment of New China, and through several changes, China’shas formed in the land system of socialist public ownership properties. Tocorrespond with the “urban-rural dual structure”, the existing land system alsoreflects binary characteristics: land into state ownership and collective ownership.The collective land can be transformed into state-owned through expropriation or anatural demise of the collective, and only land transformed into state-owned can becarried out for the transfer. However, the state-owned land cannot, by any means,transformed into the collective land. What is more, Collective land Usufruct, inparticular the transference of usufruct of collective construction land has also beenharsh legal restrictions.With urbanization and new rural construction, the market value of collectiveland swells. The need for farmland protection decides that the agricultural collective construction land is not suitable for circulating in the market. However, thenon-agricultural collective construction land has an exceptionally strong marketdemand. The farmer collective can only achieve the market value of benefits bycirculating the collective construction land. However, restrictions from the existinglaws leave the farmer collective only two options: either to stick with their own"property" in real estate form or to break the law and conduct “spontaneouscirculation.” The latter case has led to a large number of legal, economic and socialproblems. The more legal and policy interventions and restrictions on the forms ofthe contract, the higher the cost of contract execution. Albeit, in history, the laws`restrictions on the transference of usufruct of collective construction land has acertain degree of rationality, the existing legal system is no longer fit the practicalreality and has become a great obstacle in the progress of the integration of rural andurban area. The proposal of “The decision of the CPC Central Committee ondeepening the reform of some major” passed in the Party`s Third Plenary Session ofthe18th Central Committee, addressed the issues “on establishing a unifiedconstruction land market” and carried out specific guidelines for the collectivemanagement of construction land and residential land usufruct system reform.Many scholars have concerned about this field and did a great deal of researchon it. Although each focus may be different, those researches have providedimportant references for legal policy changes and adjustments. The discussions onthe legal system improvement on the usufruct of collective construction land requirediscussing it in a great deal of aspects. Given the limited space, the writer will notexplain every aspect in this article. The writer believes that through studying thecurrent legal, policy context and local practice experience, one can find some of thecommon problems. By deep analyzing these issues, the writer can put up with somemeaningful path selection with respect to the practical reality.The paper uses methodologies of historical research, literature review, empiricalresearch, inductive research. Through the paper, it first gives definition for thecollective construction land circulation, which states that, in the current situation,only the collective land for construction and the homestead have practical meanings;and comes to the conclusion that the improvement on the usufruct transference system of collective construction land has its basis of legitimacy; the writer alsoexams and analyzes the legal, policy and local practice specification file and thestatus of the local transfer. Based on the conclusion, reviews some key issues on thecurrent collective construction land use right transfer law, including whether thecirculation of homestead is feasible, how to deal with the collective management ofconstruction land market barriers, and how to distribute incomes from the collectiveconstruction land use right transfer etc. To solve these problems, the writer furtherproposed some suggestions and recommendations, in the hope that this paper mighthelp with the reform on the legal system of collective construction land.