Research On The Transfer Of Collective Construction Land Use Right From The Perspective Of Public Law

Land is the source of all production and existence.The land system of each country deeply affects the development of a country.Every reform of the land system has a profound impact on social development.A reasonable land system can stabilize the society,promote the country's economic development,and bring about social progress.The 1982 Constitution established the dualistic public ownership of urban and rural socialism in China's land,namely state-owned land ownership and collective land ownership,and the implementation of urban-rural dual management system for state-owned land and collective land.The transfer of state-owned land use rights is regulated by a matching legal system.However,according to Articles 43 and 63 of the Land Administration Law,the transfer of rural collective construction land use rights is strictly restricted,and the peasant collectives cannot decide the land transfer and The use of collective construction land and the right to use income have not been fully utilized.With the continuous development of China's urbanization process,the transfer of rural collective construction land use rights is an important part of the rational flow of production factors and the optimal allocation of land resources under the market economy system.In practice,the invisible trading market of collective construction land use rights is widespread throughout the country,and spontaneous circulation has occurred in large numbers.In these illegal and private transactions,farmers' land rights have been seriously infringed,land disputes have increased,and land disputes have occupied the vast majority of rural social problems,seriously affecting the stability and development of rural society.The Third Plenary Session of the 18 th CPC Central Committee emphasized the establishment of a unified urban and rural construction land market.The rural collective construction land and the state-owned land entered the market equally,with the same price.In the implementation of the rural revitalization strategy,the 19 th National Congress of the Communist Party of China proposed to deepen the reform of the rural land system,deepen the reform of the rural collective property rights system,safeguard the property rights of farmers,and strengthen the collective economy.All of these indicate the marketization direction of land use right reform,build a unified urban construction land market,and gradually promote the transfer of collective construction land use rights.Realizing the optimal allocation of land resources and even maximizing social welfare in a deeper sense requires a combination of government and market.As a basic right of collective land ownership,its restrictions must conform to the core nature and requirements of basic rights protection,meet the requirements of the protection of the principle of equality and the standards of the basic rights of the public interest.Under the core arrangement of the current land constitution,the state public power excessively interferes with the transfer of the right to use collective construction land,which leads to many problems in practice.The author believes that with the continuous advancement of the market-oriented reform of the collective land system,the future reform direction of the land system is to determine the optimal allocation of land resources by the market,and to liberalize the use of collective construction land under the premise of planning and use control.Release restrictions on the transfer of the right to use collective construction land,explore more effective institutional design and regulate the circulation of the right to use collective construction land.Exploring the balance between state power and individual rights,analyzing whether the transfer restrictions of collective construction land use rights conform to the principles and standards for the restriction of basic rights,exploring the boundaries of collective construction land use rights transfer restrictions,clarifying the boundaries of state public power intervention,Defining the relationship between state power and individual farmers' rights,and thus propose measures to clarify the rational allocation between state control and market decisions,the rational allocation of state public power and peasant collective rights.This paper demonstrates from five aspects.The first part is mainly to sort out the historical development and institutional evolution of the transfer of the right to use rural collective construction land.According to the historical context established by the rural collective land system,the historical generation and development of the collective land system are clarified,and the source and institutional basis of the transfer of collective construction land use rights are explored.The second part mainly analyzes the Constitution and the Land Administration Law and interprets the legal norms.To sort out the development and changes in the management and use of collective construction land use rights transfer,analyze the development and changes of the legal provisions for the control of rural collective land,and analyze the changes in the restrictions on the transfer of collective construction land use rights,so as to summarize the core arrangements of the current land constitution.The third part is mainly to carry out logical argumentation and theoretical analysis on the transfer of the right to use collective construction land from the theoretical perspective of public law.The theory of guarantee and limitation of land property rights,the public interest standard of basic rights restriction,the theory of state regulation and market function,and the principle of proportionality are used to analyze the flow of collective construction land use rights and their transfer restrictions.The fourth part is mainly to introduce the problems faced by the transfer of the right to use collective construction land in the current practice.It mainly includes the ambiguity of the collective land property rights system,the problems caused by excessive state control power and the imperfect market system.The fifth part mainly proposes some reform measures for the transfer of the right to use collective construction land.The circulation of collective construction land needs to be based on the mutual cooperation between public law and private law,and the combination of government administrative regulation and market regulation,and the construction of institutions from different levels.Firstly,the rural land property rights system is clearly defined.Secondly,the limits of national control,the positioning of government functions and the improvement of corresponding measures are defined.Then,from the perspective of market allocation of land resources,a unified land market is constructed.Finally,based on the particularity of the survival guarantee function of rural homestead use rights,careful consideration and institutional arrangements for the transfer of rural homestead use rights are carried out.