With the deepening of China's political and economic reform, the rural land property right system, as the foundation of the whole rural society, has attracted more and more attention in the fields of policy, theory and practice.
First, the status quo of rural land property rights system in China
At present, China's rural land property rights system mainly includes four aspects.
(1) ownership
In addition to state ownership, rural land is mainly owned by collectives. The second paragraph of Article 10 of the Constitution of People's Republic of China (PRC) (hereinafter referred to as the Constitution) clearly stipulates: "The land in rural areas and suburban areas belongs to the collective except that it belongs to the state according to law; Homestead, private plots and private hills are also collectively owned. " This has established the most basic guarantee for the socialist public ownership of rural land property rights system in China. No matter the land management law passed by 1986 or the property law passed in 2007, the detailed provisions on rural land rights are designed with Article 10 of the Constitution as the origin.
(B) the main body of ownership exercise
Compared with the stipulation that the ownership of state-owned property is exercised by the State Council on behalf of the state, China's laws stipulate that the ownership of rural land is exercised by "farmers' collective organizations" on behalf of the collective, including village collective economic organizations, villagers' committees, village collective economic organizations, villagers' groups and township (town) rural collective economic organizations.
(3) usufructuary right
Article 15 of People's Republic of China (PRC) Rural Land Contract Management Law stipulates that the contractor of household contract is the farmer of the collective economic organization; Article 26 stipulates that if the contractor's whole family changes to non-agricultural household registration, it shall return to the contracted land. It can be seen that the household contract management right implemented by rural collective economic organizations is a kind of rural land usufructuary right enjoyed by villagers based on their collective membership.
(4) Security interests
As China's laws stipulate that land ownership shall not be mortgaged, unless otherwise stipulated by law, collective land use rights shall not be mortgaged in principle. Therefore, according to the legal principle of real right, it is basically impossible to establish security real right on rural land in China at present. However, at present, the phenomenon of mortgage of contracted management right exists in some approved pilot projects in China, which is not of universal significance, and does not represent the law, so I will not repeat it here.
Second, China rural land property rights system problems
In the course of its evolution, China's rural land property right system has adapted to the requirements of productive forces and promoted the development of rural economy in China, but at the same time, it has also produced some problems that cannot be ignored.
(A) "farmers' collective organizations" as the exerciser of rural land ownership, resulting in the rights of collective members as owners being empty.
When exercising the power of rural land ownership, the owner should be the client and the "peasant collective organization" should be the trustee. The trustee shall, in accordance with the entrustment authority of the principal, diligently exercise the entrustment rights for the benefit of the principal. However, because the law explicitly authorizes "peasant collective organizations" to exercise rural land ownership, it does not clearly stipulate that their actions should be restricted and restricted by the owners. Even the Property Law of 2007 only stipulates that collective members whose rights and interests have been infringed may request the people's court for relief afterwards. Therefore, in practice, the protection of the rights of rural landowners is very fragile. For example, in the land expropriation system, the main right of landless peasants as landowners is the right to know about the land plan to be expropriated. Because of false rights, "farmers' collective organizations" often "make decisions for the people" and forge or sign land acquisition documents without telling the villagers; Second, the right to object to the compensation standard. In practice, once farmers are dissatisfied with the compensation for land expropriation, "farmers' collective organizations" often avoid talking about it and fail to fulfill the obligations of trustees. Individual farmers are often told that the subject is unqualified when they raise objections to the land requisition government or the approval government.
(2) The current rural land management system places too much emphasis on state administration, which occupies the civil law space of rural land property right system.
Land property right, as a kind of property right, fundamentally belongs to the category of civil law, and should be mainly adjusted by civil law, supplemented by administrative legal adjustment. However, for strict administrative purposes, China's current laws stipulate a large number of administrative functions in the field of rural land property rights system. For example, in the field of land expropriation, China law entrusts administrative organs with many administrative functions, from drawing up plans for agricultural land conversion and land expropriation to submitting for approval and organizing land expropriation. Rural landowners are completely in the position of administrative counterpart, and there is almost no room for civil legal adjustment.
(3) The compensation standard for land expropriation underestimates the intrinsic value of rural land ownership, which leads to the phenomenon that some local governments are impulsive in land expropriation and waste cultivated land.
With the development of urban and rural economy in China, the demand for construction land is increasingly tense. Especially in the suburbs around economically developed cities, a large number of new construction land is realized by requisitioning rural collectively owned land. According to China's "Land Management Law", the sum of land compensation fees and resettlement subsidies shall not exceed 30 times of the average annual output value in the first three years of land acquisition. Although "the State Council's Decision on Deepening Reform and Strict Land Management" (Guo Fa [2004] No.28) clearly stipulates that the living standards of landless farmers will not be reduced due to land acquisition; If the sum of land compensation fee and resettlement subsidy reaches the legal upper limit, which is not enough to ensure the original living standard, the local government can subsidize it with the paid use income of state-owned land. In practice, many farmers whose land has been expropriated report that even if the total compensation reaches 60,000 ~ 70,000/mu, they will still live in the open space, and joining social insurance will not provide enough protection for their future life. There are both factors of legal lag and underestimation of the intrinsic value of rural land ownership (even excluding the factors of rural land appreciation, the output value of rural land will increase in the next 20 years, and the value of rural land will be seriously underestimated), the single way to realize the value of rural land, and the lack of rights of rural land owners in the process of land acquisition. The cost of land acquisition by the government is too low. Under the stimulation of economic interests and political achievements, land is either illegally used or impulsively used, which eventually leads to land waste.
(D) Rural landowners lack the right to speak, which leads to the accumulation of social contradictions.
At present, the peasant mass incidents caused by rural land have become a serious factor affecting rural harmony, especially in the field of land expropriation. The reason is that the local government did not explain the laws and policies well and did not get the understanding and support of the landless farmers; There are also some local governments that practise fraud, for example, after the cultivated land is abandoned, it is submitted for approval. Because the approval document does not involve basic farmland and cultivated land, the land acquisition government simply does not dare to fulfill the procedures of "two announcements"; It may also be that some staff members work in a simple and rude way, which intensifies the contradiction. The fundamental reason why so many contradictions stem from rural land is that the rights of rural land owners are empty. In the process of exercising their rights, farmers lack the right to speak, and their emotions are often released in an excessive way, or they embark on a long road of letters and visits.
Three. Suggestions on the reform of rural land property right system
In view of the above problems, it is suggested that China should focus on solving the problem of illusory rights of rural land owners and take the return of rural land property rights to civil legal adjustment as the path to steadily promote the reform of rural property rights system in China.
(A) the establishment of rural land ownership * * * system, to solve the problem of rural land owners' rights.
According to China's civil legal system, * * * has a system, which is divided into * * * and * * *. It is suggested that China's "land in rural and suburban areas belongs to the collective except that it is owned by the state according to the law" be clearly stated as "owned by collective members", that is, all collective members (villagers) enjoy the ownership of collectively owned land. In this way, first, the collective ownership of rural land remains unchanged, which conforms to the socialist attribute of China's land system; Secondly, it is more important that all collective members (villagers) can regulate the exercise of rural land ownership in accordance with the rights and obligations of the owners in the Property Law, thus solving the problem that the "peasant collective organizations" exercise their ownership offside; At the same time, all members of the collective (villagers) participate in the exercise of owners' rights, avoid empty rights, and implement villagers' right to speak in the possession, use and income of land property rights. According to the Organic Law of Villagers' Committees, under the premise of not violating the mandatory and prohibitive provisions of the law, all members of the collective can also make specific agreements on * * * as the details of exercising * * * rights, so as to improve the efficiency of exercising rights.
(2) Respect the civil law attribute of land property rights and standardize rural land management.
Land, as real estate, should respect the autonomy of the owner as much as possible when it involves the interests of land property. Only when rural collectives exercise land rights in violation of laws and regulations, such as violating the overall land use planning, changing land use without permission, building kilns on cultivated land, destroying agricultural land, etc. Whether the administrative organ should intervene in management and resolutely not be absent or offside.
(3) Give rural landowners equal civil status, establish a mechanism to solve the objection of land expropriation, and bring land compensation disputes into civil relief.
According to the Constitution of China, land expropriation is limited to the needs of public interests. However, in practice, the starting procedure of land expropriation in China is too loose, and the approval documents rarely indicate whether land expropriation belongs to the public interest category. We should establish an objection system to land expropriation, allow collective land owners to question the legality of land expropriation in the pre-expropriation stage or even the examination and approval stage, and guarantee the right of land owners to speak and participate, and the examination and approval authority or the examination and approval authority will make a written explanation; If there are still objections, the law should clearly seek judicial relief and judge the legality and rationality of the specific administrative act of land expropriation through administrative litigation. When the collective land owner has no objection to the legality of land expropriation, but is not satisfied with the compensation standard of land expropriation, the law first clarifies that some people on the land are eligible subjects, and when there are a large number of people, they can entrust a "peasant collective organization" or recommend some people to the people's government to coordinate the ruling according to authorization until they seek civil judicial relief.
(4) Further improve rural land property rights.
As the material support for farmers' survival, the law should give farmers more stable and long-term land contractual management rights. In terms of security interest, rural land, as real estate, should be allowed to be mortgaged in principle. The specific framework is: the rural collective construction land use right is finally connected with the state-owned construction land use right to realize a unified construction land use right market (only with different owners), and mortgage and pledge can be set according to the state-owned construction land use right to realize the diversification of rural land value realization methods. The right to use collective agricultural land and its above-ground agricultural facilities can also be mortgaged, but the use of its agricultural land shall not be changed when the mortgage is realized.
To sum up, the reform of China's rural land property rights system should start with straightening out the relationship between "farmers' collective organizations" and rural land owners, and gradually build a complete rural land ownership and other property rights systems. At the same time, actively adjust land management policies and fully explore the application of civil legal system in rural land management.
(This article was originally included in the proceedings of the first seminar on legal system and market of land and resources of the Law Center of the Ministry of Land and Resources, 20 10).