[Keywords:] Land Law
Significance of land legal system construction
The abolition of agricultural tax is of epoch-making significance, which has aroused great concern and widespread praise. But the fundamental problem is not the agricultural tax, but the land legal system. The development of agriculture is inseparable from land. 60% of the cultivated land in China is in medium yield and needs a lot of investment. The core of farmers' problem is income. The land in developed countries is privately owned, and the land legal system is very perfect and stable. Land legal system is the key to increase farmers' income. Farmers' petition and rural instability are largely related to the imperfection and instability of the land legal system. Land legal system is the basic system in rural areas. If it is not solved, it will be difficult to implement the country's rural policy and realize the goals of rule of law and human rights. To solve the problem of low income of farmers, we should start with land. Even if the agricultural tax is abolished, it will mean an average increase of 20 yuan per mu. If land laws and policies can be stabilized, farmers will definitely take the initiative to increase their investment in land, and their income will far exceed that of 20 yuan, and the difficulty and cost will be far less than the abolition of taxes. The state can help farmers and encourage them to stay in agriculture. It can also help farmers and encourage them to switch to industry and commerce, while encouraging other forces to invest in agriculture and establish a more open market. The second way is better and can solve the problem fundamentally.
At present, the main obstacles to the formulation of the property law are the stability of the civil code and the political and economic constraints, such as the state-owned enterprise system, land system and other important systems have encountered modernization and globalization. And "in the basic system of civil law, property law is the most needed and can best reflect the national characteristics of various countries." [1] China's "General Principles of Civil Law" does not adopt the concept of property rights, but uses "property ownership and property rights related to property ownership". Its reality lies in the immaturity and instability of the land legal system. However, if we blindly pursue the perfection of the concept system and rush for success, it will damage the dignity of the law, damage the social relations in practice, and ultimately infringe on the interests of the people.
Land is an important natural resource and the source of most other properties. Throughout the ages, eastern and western countries, capitalist countries and socialist countries have attached great importance to the legislation of land system. At present, there is no comprehensive land legal document like the Land Law in China. I think an important goal of future land legislation is to draft a land law to replace or guide the rural land contract law, land management law, agricultural law and urban real estate management law, basic farmland protection regulations, village and market town planning and construction management regulations currently formulated in the National People's Congress Standing Committee (NPCSC), and to determine some provisions on land ownership and use rights. Provisional Regulations of the People's Republic of China on Farmland Occupation Tax, Several Provisions on Mortgage Registration of Rural Collective Land Use Rights, Land Registration Rules, Interim Measures for Handling Illegal Land Cases, etc. As an important part of the civil code, the property law can be extended.
Land law is a social law, which is different from the civil law of pure private law or the land management law of pure public law. The land law I conceive should have a position similar to the intellectual property law in the civil code, belonging to but not bound by it, and have certain independence. For the sake of reality, times and application, it is separated from the civil code. The marriage law should return to the civil code, because the marriage law itself is more private than the land law, and marriage disputes are more legal to follow. People have considerable faith in the marriage system, and the modern marriage system has been basically established and deeply rooted in the hearts of the people. What is needed in the future is minor modification. However, the land legal system is in a period of considerable change, which is unreliable in terms of system and people's thinking. Although it is a good and important design of the rule of law to solve the legislation of land system in the real right series of the civil code, it is not realistic at present, which will only delay the promulgation of the civil code and damage its stability. People's Republic of China (PRC)'s complete collection of laws and local laws and regulations is the destination of the civil code, which must be coordinated with the system of legal rules, which is also difficult to achieve. In a society where power lacks necessary control, power will inevitably erode people's constitutional rights, and civil law norms will inevitably be infiltrated, misled and destroyed by the management legal system; Detailed civil law, the main law of modern society, is in a completely unfavorable position. Lawmakers must formulate an all-encompassing civil code. It can be expected that the intrusive provisions of the management legal system will not be abolished for a long time. Even if it is cleaned up after the promulgation of the Civil Code, it is impossible to complete the cleaning up of the management law of solidifying power without the legal system of constitutional system. It is doomed to be a complete failure to bring the all-encompassing civil code into the existing management legal system and expose it to the invasion of the management legal system. The important task of property law is to straighten out the property relationship between the state and state-owned enterprises; What the property law wants to solve is the subject, content and exercise of rights of collective ownership, [2] which is actually powerless as a private property law. In the present reform era, the land law is immutable, and it is crossing the river by feeling the stones. From 19 to 12 in 28 years, the Jinggangshan Land Law formulated by the Hunan-Jiangxi border government and the Resolution on Land Issues formulated after the uprising in various places, and the Land Law of Xingguo in April of 29 years; The Temporary Land Law of May, 30; Land Law of the Central Military Commission in August, 301.1Monthly Regulations on Rent Reduction and Interest Reduction of Anti-Japanese Democratic Regime in Chinese Soviet Land Law1May, 946 Central Committee's Instructions on Land Issues 1946, 6536.106/KLOC. Land adjustment is very frequent, which has seriously threatened the stability of land. We can imagine the variability of the property right system in the future civil code.
The fundamental purpose of land legal system is to protect and effectively use land resources; The adjustment objects of land legal system are the ownership, use right, circulation right and management right of land. [3] Land law should determine the ownership of land and define part of land ownership to farmers as far as possible. Rights should be not only clearly defined, but also effectively protected. If farmers can't have all the rights stipulated by law, or the cost of having all the rights is too high, then this measure is not an effective way to fundamentally solve land disputes and heavy tax burden. In order to make this method work, the state must strictly implement various bills and effectively supervise the strict implementation of these bills at the grassroots level. Obviously, under the restriction of the current political, administrative and legal environment in rural areas of China, it is impossible to protect the rights given to farmers by law at low cost.
Land law has broad sense and narrow sense. Land law in a broad sense refers to all laws directly related to land. In a narrow sense, it refers to the legal provisions on land distribution, utilization and improvement and the provisions attached to the realization of some land policies. Land law in a broad sense includes not only special land legislation, but also land-related provisions in other legal systems, including, of course, the provisions on real estate system in mainland property law and Anglo-American property law. The land legal system is a system composed of interrelated, complementary and restrictive legal norms and other legal sources, aiming at adjusting the social relations arising from the development, utilization, protection and improvement of land and land market. Land legal system does not refer to a specific land law, regulations or legal norms, but refers to the sum of all land laws and norms, land laws, regulations and other land legal manifestations and other land legal sources, including land ownership, rational development and utilization of land, and land protection, governance and management, involving civil law, economic law, environmental law and resource law. The narrow sense of land law only refers to the comprehensive land law, that is, the legal norms contained in special land legislation, such as the land laws of the former Soviet Union, North Korea, Romania and Cambodia. Regarding the specific content of land law, there are great differences among countries because of their different political, economic, historical and cultural traditions. For example, the main land legal systems in common law countries include real estate system, trust system and special land property right system, which are not closely related. The core content of land legal norms in civil law countries is the land property right directly rooted in Roman law, including land ownership, easement, permanent tenancy, superficies, pledge and mortgage. The system referred to in this paper integrates various existing systems, target systems and other academic systems, hoping to promote the optimization, perfection and development of the existing system, target system and other systems of land law through comparison and contention.
Second, China land legal framework and analysis
China's land legal system consists of Constitution, Basic Law and Land Law. Constitution is the fundamental legal document and the basis of land legislation. Civil law, criminal law, administrative law and other basic laws make important provisions on land issues, which is the main basis for formulating the next level of land law. Land law is the main law in the land legal system. At present, there is no land law in China ―― so much so that the masses, media and cadres call it land management law and rural land contract law on different occasions ―― but only land management law and agricultural law, a more administrative civil legal document, rural land contract law and some environmental law documents. The legal framework of land in China can be divided vertically and horizontally. From the vertical relationship, it includes the land management law formulated by NPC Standing Committee, the rural land contract law and the urban real estate management law. Regulations on the Implementation of the Land Management Law and Regulations on the Protection of Basic Farmland promulgated by the State Council; Local land laws and regulations formulated by the people's congresses of provinces, autonomous regions and municipalities directly under the Central Government and their standing committees according to the specific conditions and actual needs of their respective administrative regions, but shall not contravene the Constitution, basic laws and administrative regulations; Land laws and regulations formulated by land administrative departments of the State Council and other departments (commissions) according to laws and administrative regulations, decisions and orders of the State Council, such as the Provisions on Transferring State-owned Land Use Rights by Bidding, Auction and Listing, which was implemented by OrderNo. 1 1 of the Ministry of Land and Resources on July 3, 2002; Land regulations formulated by the people's governments of provinces, autonomous regions, municipalities directly under the Central Government and larger cities in accordance with laws, administrative regulations and local regulations. From the horizontal relationship of land law, it should include all laws related to the adjustment of land relations, such as urban planning law, surveying and mapping law, railway law, forest law, soil and water conservation law, agriculture law, grassland law, fishery law, mineral resources law, water law and so on. These laws stipulate the coordination between the object of legal adjustment and the land relationship from different aspects.
Privatization of rural land is feasible and necessary. The ownership of land should be clearly given to farmers, which is the purpose of rural land contract law. The rural land contract law, which has the strongest private law nature, has a lot to be affirmed in safeguarding farmers' rights and interests. For example, in the general part, it is emphasized that farmers, that is, contractors, have equal contracting rights and non-contracting rights. In particular, it is emphasized that the employer shall not unilaterally terminate the contract, force the contractor to give up or change the land contractual management right on the pretext that the minority is subordinate to the majority, and shall not take back the contracted land for bidding and contracting on the grounds of dividing the "grain field" and "responsibility field", and shall not take back the contracted land to offset the debt. Emphasize the subcontracting fee, rent and transfer fee for the transfer of land contractual management rights. The transfer income belongs to the contractor, and no organization or individual may intercept or withhold it without authorization. And try to avoid frequent changes in land use rights. In view of the fact that rural cadres in some places often change the area of motor land without authorization, manipulate its distribution and use for personal gain, and seriously infringe on farmers' land use rights, Article 63 stipulates that "if motor land has been reserved before the implementation of this Law, the area of motor land shall not exceed 5% of the total cultivated land area of this collective economic organization. If it is less than 5%, no motor shall be added. If there is no motor land before the implementation of this Law, there shall be no motor land after the implementation of this Law. " These regulations are conducive to the relative stability of rural land use rights, to farmers' defense of their rights to land use rights, subcontracting, leasing, exchange, transfer and inheritance, to farmers' defense of their exclusive right to use land during the contract period, and to emphasize the real right of land rights.
From the perspective of efficiency, especially from the perspective of promoting the full flow and free combination of factors, this law seems to lack foresight. The circulation of rural land must be greatly accelerated, which can help most rural people leave their homes completely, help to concentrate cultivated land as soon as possible, help to expand the average scale of agricultural operation and profoundly change the production structure, help to improve the agricultural productivity in China, and help China's agriculture to play a comparative advantage in the increasingly competitive world farmer's market. China's rural land system is very different from most countries in the world where land is owned by farmers. China still insists on the collective ownership of rural land. No developed country has adopted this unique land system in China. This land system will gradually show its limitations in the historical process of China's integration with the world and its transition to a real market economy, which is not conducive to the process of urbanization and modernization. Compared with the land circulation under private ownership, its provisions not only make the land circulation more difficult, but also easy to be politicized.
The provisions of the Land Management Law and the Regulations on the Implementation of the Land Law on land control are not clear, which easily leads to confusion in the management of higher and lower levels. If the division of authority between the superior and the subordinate is not clear, it will lead to the absence or offside of power, and the final result can only be the damage of farmers' rights and interests. The Land Management Law and the Regulations for the Implementation of the Land Management Law do not clearly define the boundaries of rights and obligations between farmers and the state, and the state and farmers are in an unequal position and above farmers. When the state expropriates land, the law stipulates that "the state may expropriate collectively owned land in accordance with the law for the needs of public interests" and "the state practices a system of paid use of state-owned land in accordance with the law. However, unless the state allocates the right to use state-owned land within the scope prescribed by law, "and" if it violates the provisions of land management laws and regulations and obstructs the expropriation of land for national construction, the land administrative department of the people's government at or above the county level shall order it to hand over the land; If you refuse to hand over the land, apply to the people's court for compulsory execution. " But as for how the government should use it to compensate, there is no specific solution or principle in law. Farmers' land rights have not been strongly guaranteed by law, and farmers' land rights have become very fragile in the face of state power. Differences between farmers and the government on land issues? Shibao? ┟┕┕┕┕┕┕┕┕┕┕┕┕! Forging love, jade, gangue, ā phenol, forging love, jade, gangue, shit? Go back? ┟ hey, hey? What's the matter with you? However, the relationship between farmers and land is not clear, so it is difficult to solve the problem of dental caries and dental caries. It is necessary to let the people play with the right to gnaw the exact land, and the punishment can be made clear in protecting happiness. Only when the sword-like land rights are permanently given to farmers # Luo people will cherish the protection of land; Only by permanently granting land rights to farmers can people truly realize the free sale of land? Hey, Rice? What's the matter with you? Small? /SPAN>。 Moreover, farmers' legal concept of land ownership is very weak at present. Some people unilaterally think that the land is collective, and what can be used to build houses becomes their own, so they try their best to occupy more homesteads, and even regard the contracted responsible farmland as private land, occupying or changing houses without authorization. At present, a large number of idle homesteads in rural areas gather in the new village outside the old village, resulting in a large number of idle and abandoned homesteads and blank areas in the old village, while the layout of new houses is scattered and the area is too large. Over time, a huge "hollow village" has been formed. How to make the "hollow village" a reality, protect the existing cultivated land resources and improve the land utilization rate is not only a new topic faced by grass-roots organizations, but also a big problem in national land legislation. Land privatization can fundamentally solve this problem.
Three horizontal comparative studies
The land ownership and property right system in German, Japanese, Korean and China Taiwan Province Province may be our ultimate target system. In the process of developing the western United States, in order to deal with the land problems in the western colonization, the United States Congress passed a number of land laws. The land law 1785 is the first federal land law put into practice. It stipulates the principle of land ownership and land sale to immigrants. In the process of selling the commons, the federal government adopted the preferential policies of partial credit and deferred payment from 1796 to 1820. From 1806 to 1832, Congress passed several relief laws to delay the confiscation of unpaid land. These measures have played a certain role in the acquisition of land by poor farmers. 1861The famous Homestead Law passed on May 20th is the most democratic land law in the western development. In fact, it allocated 160 acre homestead to every eligible settler for free, which greatly accelerated the land development in the western region. 1866, the federal government extended the land sales policy to mining areas, which promoted the development of capitalist mining industry. Since 1823, the federal government has allocated a lot of land for the construction of roads, canals and railways, which has promoted the development of transportation in the western region. In the United States, a well-off family mainly engaged in agriculture needs to own about 300 acres of first-class farmland in China. Today, a farmer in China has too little arable land and has to pay the contracted rent. What is certain is that it is impossible for farmers in China to live a well-off life without abandoning agriculture and working in large numbers. France's socio-economic development largely benefited from the Napoleonic Code. When the land system changes, serfs become freemen and personal attachment disappears. After Russian President Vladimir Putin came to power, the first thing was the privatization of land. Private ownership of land is based on the basic economic principle of optimal cost or maximum income under given constraints. Under the condition that the transaction cost is not zero, defining land ownership to farmers will produce greater benefits than defining it to the government or the country. The smooth implementation of any system or contract requires not only a clear definition of ownership, but also effective ownership protection. Otherwise, it is difficult to implement the system or contract, and breach of contract, ultra vires and various infringements will occur.
Fourthly, historical investigation and the thought of land privatization.
The establishment of private ownership of land represents a major and far-reaching institutional replacement in human history; The land system also plays an important role in promoting or restricting the development of productive forces; At the same time, the lessons of disastrous consequences caused by land system and policy mistakes in China's history are also worth learning. [4] The tradition in China is private ownership of land. From the Jing Tian system to the Ming and Qing Dynasties, private ownership is a tradition. Moreover, since the Republic of China, private ownership of land has been institutionalized, and by the Qing Dynasty, the emperor could confiscate the land. China had a land law in the 1920s. Of course, the land law at that time had its limitations, such as limiting the lease period, limiting the proportion of rent, enforcing the right of permanent tenancy, and having too much administrative power. During the two thousand years from Qin and Han Dynasties to the end of Qing Dynasty, cultivated land always changed in three cycles of state-owned-private-state-owned, and every change from private land to state-owned land was accompanied by social unrest and reversal. The transformation from state-owned land to private land will promote the recovery of agricultural economy and the strength of the country. Correspondingly, the transfer of property rights and tenancy management through land acquisition and merger became the main content of land relations in China feudal society. Non-arable land generally belongs to the state and basically does not join the field of property rights flow [5]. Under the feudal system in China, private property rights of land existed for a long time and allowed large-scale free flow, which played an important role.
After the founding of New China, the feudal private ownership of land was completely abolished through land reform, and the private ownership of farmers' family land was established, allowing private land property rights to be freely bought, sold, leased, pawned, mortgaged and donated, which was strongly protected by the national land legal system. This socialist private ownership of agricultural land has a strong incentive effect on the efficiency of production, agricultural land allocation and the performance of institutional changes. Subsequently, the collective ownership of rural land established in China implied the land sharing mechanism, which directly stimulated the rapid growth of rural population, and then reduced the ratio of people to land, resulting in the fragmentation of agricultural land management scale, leading to the continuous decline of agricultural labor productivity and land return rate. Since the Third Plenary Session of the Eleventh Central Committee, under the premise of continuing to adhere to the unchanged collective ownership of rural land, farmers have a certain degree of autonomy in production and operation through the separation of land ownership and use rights, but the state has never delegated private property rights to farmers. Therefore, in the next step of rural land system innovation, we must completely restore the nature of land as the most basic factor of production in agriculture, introduce market economic mechanism, give play to the basic role of market in allocating agricultural resources, and truly make rural land flow. By actively cultivating and gradually improving the rural land market, we can improve the level of agricultural land use, improve agricultural labor productivity and input-output ratio, improve the degree of agricultural marketization and internationalization, continuously increase farmers' income, and promote the sustainable development of agricultural production and the overall prosperity of rural economy. In order to continue to promote the reform and innovation of rural land system in China, it is necessary to establish a scientific and effective land legal system.
The collective land ownership under the rural household contract management system in China has been empty for a long time, forming a tradition that administrative power is greater than farmland ownership or use right, which leads to a large loss of rural cultivated land resources and infringes on farmers' economic interests. According to the principle that the land ownership owned by farmers is unified in law and economy, the rural land market subject with clear property rights should be reconstructed and protected from the constitution and related land legal system. According to the data analysis of the national land resources survey during the period of 1996, the state-owned land area accounts for 53. 17%, the rural collectively-owned land area accounts for 46. 18%, and the area with undetermined land ownership accounts for 0.65%[6]. Therefore, even if all the rural collectively owned land is privatized, the socialist public nature of China's land resources will not be completely changed. On the contrary, if we continue to maintain the current national land acquisition system, we can only change the ownership of rural collective land into the ownership of urban state-owned land in one direction, which directly leads to a net decrease in the stock of agricultural land resources owned by farmers. Privatization of rural land makes the property right relationship between urban and rural land market clearer, which is conducive to introducing market competition mechanism to optimize resource allocation, promoting the free flow of cultivated land among farmers, improving the level of rural land use and agricultural labor productivity, and promoting the adjustment of agricultural production structure and the rapid development of rural secondary and tertiary industries. Privatization of rural land is conducive to the centralized management of cultivated land on a moderate scale, which can better play the regenerative function of land as the mother of increasing social wealth, cultivate a large number of new cooperative economic entities and cooperative economic organizations, and establish and develop a new rural collective economy with the nature of socialist market economy. Land is not private, according to Marx, that is, "farmers are bound to land." This means that if farmers leave the land permanently, they will lose their land rights. Therefore, if he works outside the home, he will go back regularly, and the government will adjust the rural land every three or four years according to his marital status. Adjustment means there is no real private property right. The power of regulation is entirely in the hands of the government. The population of farmers must be drastically reduced, and agriculture must be abandoned for industry and commerce. Hundreds of millions of farmers in China had to leave their land. The present situation in China is that when farmers leave, they lose their right to land. So now the phenomenon of farmers abandoning wasteland is very serious. After the land belongs to the village, it loses its rights; But he can't buy or sell the lease, so he would rather go out to work. Whether the land system should be public or private is actually a question of farmers' rights, and he should be able to decide whether the land is public or private. According to the Constitution, rural land belongs to collective ownership. Collective ownership, that is, people in the village collective should be able to decide to divide, rent or sell. Without complete private property rights, private ownership and free trade of land, it is impossible to form land prices. Privatize land, abolish the household registration system and turn people into free men. These are two important and urgent problems. If the land is his, he can immigrate permanently. Because even if his land is not for sale, he can entrust others to manage and lease it. With the acceleration of rural labor transfer to cities and towns, more and more farmers live, work or do business in cities with their families, and more and more old houses are built and abandoned. It is more and more common for farmers to sell private houses on rural collective land. Because there is no property right certificate, it is impossible to handle the transfer formalities, and how to determine the compensation subject during demolition has led to more and more disputes, mainly because the current laws in China have not made clear provisions on the sale of such real estate. There is no stipulation that private houses on rural collective land may not be bought or sold, and there is no stipulation on how to buy or sell private houses in rural areas. Because these houses have no title certificate, they can't go through the transfer procedures when buying and selling, resulting in a large number of rural private houses being idle, and then collapsed because they were uninhabited and unrepaired. In addition, the second paragraph of Article 8 of the Land Law stipulates that farmers' land, including homestead, private plots and private hills, belongs to rural collectives, and selling homestead is actually an infringement on the land ownership enjoyed by rural collective organizations. In rural areas, the phenomenon of illegally seeking benefits by selling rural homestead in the name of selling houses is also prominent. Farmers' houses and property are not protected, which is not conducive to the flow of rural population and the market-oriented development of rural economy. Privatization enables private houses built on rural collective land to be bought and sold legally and orderly, thus promoting the orderly flow of rural population and the healthy development of rural economy.
The privatization of land ownership can be gradually realized in the reform, and on this basis, a mature and perfect property law system and civil code can be established. It's always been a futile and free day. As far as the Land Contract Law of 2002 is concerned, the right to use, benefit and transfer of land has been clearly given to farmers, but farmers have not fully obtained all the rights endowed by law.
Of course, privatization should be accompanied by strengthening the process of grassroots democratization. In addition, township governments and village committees can be abolished, weakened or diluted. Because village committees and township governments are no longer necessary at present, their functions have done more harm than good. At present, the performance of rural village committees is very poor. The ownership of rural land is defined to farmers. When farmers exercise their land rights, they no longer sign contracts with village committees, but only with the state, which is a social contract.
Five conclusions
In the basic system of civil law, property law is the most needed and can best reflect its own characteristics. Property law can basically be attributed to a country's allocation and utilization of its own resources. Moreover, China is a populous country with relatively scarce resources. It has long practiced public ownership of the means of production and has always attached importance to the relative fairness of wealth distribution in the process of economic system reform. In the process of formulating the property law, more emphasis should be placed on starting from one's own national conditions, rather than starting from ready-made concepts. Therefore, to study China's property rights, we must first study China's land rights; To establish a property law suitable for China's national conditions, we must first establish a land rights system suitable for China's national conditions. [7] At this point, China's property law and civil code can't be eager for success. The realistic approach can consider establishing a sound land legal system first, which does not mean that we are stagnant. However, in the process of continuous progress and improvement, we should pay attention to the reality and step by step, in order to truly benefit people's livelihood and the national economy.
[1] Wang Weiguo, Research on Land Rights in China, China University of Political Science and Law Press, May 1997, p. 6.
[2] Wang Liming, "Special Study on Property Law", Jilin University Press, July 2002, the first 1 issue, the third page.
Wang Weiguo, op. cit. , page 3.
Wang Weiguo, op. cit. , page 2.
[5] Ping Jiang, Research on Land Legislation in China, China University of Political Science and Law Press, 1999, pp. 96-97.
[6] Liu Yucheng, Data Set of Land Resources Survey in China, printed by National Land Resources Survey Office, 2000, p. 38.
for reference only