Studies On The Legal System For Innovation Of The Collectively-owned Rural Construction Land Circulation

The land system in China,i.e.,“the urban-rural dual structure” and “the administration and control of the land use” restrict the land use and allocation.Before the Land Administration Law has been amended for the third time,if any unit or individual intends to use collectively-owned land for non-agricultural construction,the rural collectively-owned land must be expropriated by the state and converted to state-owned land before being transferred to the user,which leads to the rural collectively-owned construction land cannot be circulated freely.Since 1999,China has gradually formulated policies to deploy pilot projects for the transfer of use right of rural collectively-owned construction land,and actively explored the system innovation.After nearly 20 years of practice,the innovation of the circulation system of collectively-owned construction land has achieved a certain degree of success.In 2018,the State Council of the PRC announced “the implementation of the rural revitalization strategy”,requiring further explore and improve systems for the transfer of use right of rural collectively-owned construction land,revise the Land Administration Law as soon as possible.In 2019,China amends the Land Administration Law of the People's Republic of China(entered into force on Jan 1,2020),which for the first time allowed the transfer of collectively-owned construction land,especially the establishment of the system for the transfer of collectively-owned construction land,from the national level.The new Land Administration Law removed the rule that the collectively-owned construction land cannot be used for non-agricultural construction,so that the system innovation finally showed in Article 63 of the new Land Administration Law.Regarding the legal system for the circulation of rural collectively-owned construction land,although the revision of the Land Administration Law has removed the rule that the collectively-owned construction land cannot be used for non-agricultural construction,there are still three “gaps” between the current legal system and the innovation of the circulation system.First,the unclear legal status of the use right of rural collectively-owned construction land.Second,some regulations conflict with Article 63 of the new Land Administration Law.Third,the lack of regulations or implementation measures to harmonized the circulation of rural collectively-owned construction land.These “gaps” can be resolved by confirming the legal status of the use right of rural collectively-owned construction land as usufructuary right when formulating the Civil Code,revising the regulations which conflict with the innovation of the circulation system,adopting a law or regulation that specifically regulating the circulation of rural collectively-owned construction land through the national legislation procedure as soon as possible.In the choice of relevant substantive law and procedural law,there is a disconnect between the national legislation and the local legislation,and local legislations for the circulation of rural collectively-owned construction land are not uniform.After analyzed to nearly 40 local legislations in different provinces and cities,this dissertation focuses on analysis from the perspective of circulation party,land admittance scope,circulation methods,distribution of circulation income,requirements of villager consent,publicly trade procedure,external supervision regulations,summarizes the commonalities,points out the existing problems and further propose recommendations on the regulatory system.