Study On The Rules For Granting The Right To Use Collectively Operated Construction Land

Article 63 of the Land Management Law provides a legal basis for the market transfer of collective land in China,and provides a basic legal guarantee for the realization of "the same price and the same right" for collective business construction land and state-owned construction land.However,the rules of collective management construction land use right transfer are not clear,and it is of great urgency to study them from the perspective of interpretation.In addition to the introduction and conclusion,this paper is divided into four parts:The first part is "the transfer of the right to use land for collective management and construction and its institutional value".The transfer of collective business construction land use right refers to the act of collective land owners transferring the right to use collective business construction land to land users within a certain period of time,and the land users paying the land use right transfer fee to the land owners.The transfer of land use rights for collective management construction land has the institutional value of revitalizing collective management construction land,protecting farmers’ rights and interests,and promoting the modernization of the national governance system and governance capacity.The second part is "study on the pilot project of collective management construction land use right transfer".From the pilot situation of each pilot area,a preliminary mode of transfer has been formed for the implementation subject of the transfer,the selection of the transfer mode,the main body of democratic resolution,and the proportion of revenue distribution of the transfer.However,the mode of collective management construction land use right transfer and the announcement of the transfer have not yet formed clearer standards and norms,which need further response from legal theory.The third part is "basic elements of the rules for granting the right to use land for collective management and construction".The elements of the transfer rules include the scope of the transfer,the subject of the transfer,the method of the transfer and the resolution of the transfer.The scope of the grant should include incremental land,and the scope of "business use" is not suitable for commercial housing development for the time being.The rural collective economic organization on behalf of the collective farmers to exercise the act of transfer,the rural collective economic organization is not sound or not established rural collective economic organization can be exercised by the village committee on behalf of.In principle,the transfer should be made in the open market by open bidding,if the transfer is made by agreement,the conditions and procedures of the agreement transfer should be strictly followed.The subject of democratic resolution shall be the members of the rural collective economic organization,and the general meeting of the members of the rural collective economic organization shall be held,and the villagers’ general meeting may be held in places where the rural collective economic organization is not sound or not established.The fourth part is "construction of rules for the transfer of collective business construction land use rights".The transfer of collective management construction land use rights should follow the principles of voluntary transaction,moderate intervention,transaction security and fair distribution,and establish a system of rules for the transfer of collective management construction land use rights with the property right system,market transaction system and revenue distribution system as the core.Firstly,clarifying property rights is the premise and foundation of the concession,and registering the property rights subjects and the land resources involved in property rights transactions.Secondly,the market transaction rules should be improved,and the improvement of the transfer subject should accelerate the legislation of the rural collective economic organization,which in principle should implement the act of transfer,and in the absence of the rural collective economic organization can be entrusted to the subject with the qualification of enterprise legal person and the ability to implement the act of transfer.The agreed land sale cannot be less than 70% of the benchmark land price,and the results of the agreed land sale should be publicized.Build a unified collective land trading platform in the county-level trading market to make transaction information more accessible.Set up supplementary rules in the absence of township collective economic organizations,drawing on the relevant settings of the Company Law on resolution procedures.Finally,improve the revenue distribution system by having the government collect a reconciliation fee based on25% of the value-added land revenue,with the rest of the revenue going to the collective economic organizations.When the collective economic organization allocates or uses the proceeds,it should convene a general meeting of the members of the collective economic organization.