Research On The Institution Of The Withdrawal Of The Right To Use The Rural Residential Land In China

The withdrawal of the right to use the rural residential land stems from the increased number of the rural floating population and the continuous shortage of land resources utilization.For one hand,the increase of the floating population directly caused a series of chaos in the use of rural residential land,which undermined the rural residential land's guarantee function to the collective economy.For the other,the shortage of land resources is embodied in the imbalance between urban and rural development,that is,the continuous expansion of urban size and the unceasingly shortened distance between urban and rural location forced the withdrawal of the right to use the rural residential land.Whereas the current regulations on the causes of the withdrawal of the right to use the rural residential land fail to come to any agree and each circle of the scholars stick to their own arguments on the withdrawal of the right to use the rural residential land,based on which the paper holds that it is necessary to reconstruct the institution of the withdrawal of the right to use the rural residential land from the perspective of basic theory and legal system through full use of juristal theory and legal means,which is established in the protection of the interests of the holder of the right to use the rural residential land and the efficient utilization of the rural land resources.The paper was divided into three parts.In the first part,the paper analyzed the meaning and definition of the withdrawal of the right to use the rural residential land from the theoretical point of view and divided the withdrawal into mandatory withdrawal and voluntary withdrawal combined with the fundamental theories of elimination of the usufructuary right.As to the mandatory withdrawal,the first part summed up the basic withdrawal causes conforming to the theory on jus ad rem.As to the voluntary withdrawal,the first part held that its necessity shall be examined and weighed by administrative means.And then through the value analysis,the paper clarified the institution value orientation of giving priority to efficiency with due consideration to fairness.In the second part,based on the jus rerum and land management law,the paper,from the legal system,summarized the current main types of the withdrawal causes,which include the land being lying idle,under overproof occupancy and under occupancy in a lack of qualification.And then the paper took the representative withdrawal pilot reforms of Chongqing City and Jiaxing City in Zhejiang Province as examples to reflect on the main problems existing in the current institution,that is,the lack of systematization in cause,the lack of unity in procedure and the lack of indemnification in compensation.In the third part,based on the first two parts,the paper recommended three measures for improvement.The first is to reconstruct the withdrawal causes,which includes constructing the rights to use the rural residential land of revocation,abandonment,repurchase,and expropriation.The second is to standardize procedures,which means setting up a system of utilization with compensation and perfecting the democratic decision-making mechanism in the process of withdrawal.The third is to optimize the withdrawal compensation,that is,continuing to enrich the forms of withdrawal compensation,fully expanding the sources of compensation,dredging the channels of appropriated compensation and finally guaranteeing the property rights of the members of the collective economic organization effectively.