Rural collective land circulation is a special product of China's unique land property right system, and it is the realization form of the combination of rural land ownership, management right and use right. At present, under the premise of adhering to the household contract management system, the contractor transfers the land use right he owns to the employer or other units and individuals through subcontracting, transfer, exchange and shareholding in accordance with the principles of legality, voluntariness and compensation. The development and utilization after land transfer must also be carried out according to law, and the nature of land ownership cannot be changed, so as to prevent illegal change of agricultural use of cultivated land in the name of land transfer. Therefore, the circulation of rural construction land is a difficult and hot spot in the circulation of rural collective land use right, and it is one of the problems that need to be solved urgently at present.
With the rise of agricultural industrialization and the transfer of rural labor force, the circulation speed of rural collective land use right has obviously accelerated and the scale has been expanding. How to guide, improve and standardize the rational circulation of rural collective land use rights, especially whether and how rural construction land can be circulated, that is, to standardize the legal circulation of rural construction land, so as to realize the rational and sustainable utilization of rural collective land.
June 5438+October 20041October the State Council No.28 "Decision on Deepening Reform and Strict Land Management" pointed out: "On the premise of conforming to the plan, the right to use the construction land collectively owned by farmers in villages, market towns and towns can be transferred according to law." This principled provision still lacks operational legal norms for local governments. In July, 2005, the Administrative Measures for the Circulation of Collective Construction Land Use Rights in Guangdong Province was issued in the form of "Government Decree", which provided a local legal basis for the direct entry of rural collective land into the market in this province. Under the legal framework of the current land acquisition system, the tradition that "no farmland can be legally converted into non-agricultural use without land acquisition by the government" has been broken, and a new era of coexistence of land acquisition system and farmland direct market entry system has emerged.
First, the policy evolution of rural collective land use right transfer
Since 1950, China's rural areas have experienced four large-scale changes in land property rights system, or the rural collective land use right transfer policy has experienced four periods.
The first period: the early 1950s.
1Article 30 of the Land Reform Law promulgated and implemented in June, 950 stipulates that farmers "have the right to freely operate, buy, sell and lease" their own land, which gives them the right to freely transfer land, but this period is relatively short.
Phase II: 65438+mid-1950s-65438+late 1970s.
1955, the socialist transformation of agricultural means of production and the people's commune movement finally established three-level ownership and team-based collective ownership, weakened farmers' awareness of land property rights, and caused the false ownership of rural land. There is no legal property right relationship between individual farmers and land, and the circulation mode of "having the right to operate, buying and selling freely and renting freely" no longer exists.
The third period: the initial stage of reform and opening up-265438+the beginning of the 20th century.
From 65438 to 0978, the contract responsibility system for land production appeared one after another, which marked the transformation of rural land system from simple collective ownership to the mode of separation of collective ownership and family management, and the circulation of rural collective land use rights sprouted.
From 65438 to 0987, the State Council approved some coastal developed provinces and cities to carry out pilot projects of moderate scale land management, which made the transfer of land management rights break through the restriction of household contract management, and the rural land transfer system began to enter a new exploration period.
1998 revised Land Management Law regulates the free circulation of rural land use rights, and the Rural Land Contract Law implemented in 2003 protects the legal land contract management right from the legal level. According to the law, the land contractual management right obtained through household contract can be transferred by subcontracting, leasing, exchange, transfer or other means according to law.
The fourth stage: since 2005
June 5438+October 20041October the State Council No.28 "Decision on Deepening Reform and Strict Land Management" pointed out: "On the premise of conforming to the plan, the right to use the construction land collectively owned by farmers in villages, market towns and towns can be transferred according to law." In July, 2005, the Guangdong Provincial Government formulated the Administrative Measures for the Circulation of the Right to Use Collective Construction Land in Guangdong Province, which made it clear that the right to use collective construction land in rural areas can be circulated in the market through bidding, auction, listing and online bidding, which means that the circulation of the right to use rural construction land has entered the stage of marketization. Other areas have also begun to loosen to varying degrees.
Second, the current situation and characteristics of rural collective land use right transfer
From 65438 to 0987, China implemented the reform of land use system, and the right to use state-owned land entered the market. The establishment of the paid use system of state-owned land has promoted the economic and social development, but the reform of the collective land use system has lagged behind. Rural collective land use right transfer includes circulation of agricultural land and construction land transfer. Agricultural land shall be carried out in accordance with the provisions of the rural land contract law, and its use shall not be changed. However, the conversion of agricultural land into construction land can only be levied by the state at present.
1. In reality, the circulation of rural collective land use rights is widespread, especially the circulation of construction land.
The current land management law prohibits the transfer of rural collective land use rights for non-agricultural construction. The dual structure of urban and rural areas and the "two kinds of property rights" of the state and the collective form two divided land markets. Since the 1980s, with the continuous development of urbanization in urban and rural areas in economically developed areas, the nature of collective construction land assets has gradually emerged, and the phenomenon of spontaneous circulation of collective construction land use rights in the form of transfer, transfer, lease and mortgage has occurred frequently, with an expanding trend in quantity and scale. In fact, the invisible market for collective construction land exists objectively. In Guangdong, Zhejiang, Jiangsu, Shanghai and other places, in order to solve the problems of insufficient state-owned construction land and farmers' participation in industrialization and urbanization, a large number of enterprises in urban suburbs, county towns and central market towns use collective land, which makes it a reality for collective construction land to enter the market. The Pearl River Delta region is particularly prominent. According to statistics, the use of rural collective construction land in the Pearl River Delta actually exceeds 50% of the collective construction land, and the proportion in eastern Guangdong, western Guangdong and northern Guangdong also exceeds 20%. However, there are some contradictions between these phenomena and the current rural collective construction land management system, which reflects the internal demand of the circulation of collective construction land use rights under the condition of market economy and has its profound rationality.
However, spontaneous circulation has caused many land disputes. Due to the lack of legitimacy, this kind of transfer contract belongs to the invalid contract stipulated in the Contract Law. Some enterprises with poor business performance take advantage of legal loopholes and deliberately fail to pay the rent before the expiration of the contract, so the collective interests of farmers cannot be guaranteed during the litigation.
In reality, it is not difficult to find that in the process of rural collective construction land transfer, industrialization and urbanization are the external thrust of rural collective land transfer, and unreasonable land use income distribution mechanism is the internal driving force of collective land use right transfer. With the rapid development of social economy, the circulation of rural collective land use rights has been in an embarrassing situation.
2. Ways and characteristics of rural collective construction land transfer
The forms of circulation of contracted management right of agricultural land mainly include the transfer, subcontracting, exchange, shareholding and auction (lease) of the right to use "three wastes". The forms of rural collective construction land transfer mainly include land use right lease, direct transfer of land use right, land shareholding, joint venture and so on.
The forms and characteristics of rural collective construction land circulation: first, with the development of enterprises, the circulation of collective construction land use rights appeared due to the merger, merger, reorganization and shareholding system reform of enterprises; Second, in order to develop the economy, collective economic organizations at the township and village levels set up enterprises with internal introduction and external connection in the form of shares or joint ventures with collective construction land use rights; Third, the transfer of the right to use collective construction land caused by the judicial ruling of creditor's rights and debts between enterprises; The fourth is to use idle collective construction land for rent; Fifth, the lease, mortgage and transfer of suburban farmers' homestead changed the right to use, that is, the right to use collective land was transferred and leased together with farmers' houses. Not only the land used by township enterprises generally circulates with the enterprise restructuring, but also the rural homestead circulates with the sale or lease of houses. Reality has proved that the circulation of rural collective land use right has been widespread, which meets the objective needs of market economy.
Third, the legal constraints on the circulation of rural collective land use rights.
The legal restrictions on the circulation of rural collective land use right mainly refer to the circulation of rural collective construction land. At present, there are no special laws and regulations on the circulation of rural collective construction land. The only law related to land classification, use and planning is the Land Management Law revised in 1998.
Article 10 of the Constitution stipulates: "Urban land belongs to the state. Land in rural areas and suburban areas belongs to the collective, except that it is owned by the state according to the law; Homestead, private plots and private hills are also collectively owned. In order to meet the needs of public interests, the state may expropriate or requisition land in accordance with the law and make compensation. No organization or individual may occupy, buy, sell, lease or illegally transfer land in other forms. "
Article 2 of the current Land Management Law stipulates: "The state implements the system of paid use of state-owned land according to law." Article 43 stipulates: "Any unit or individual that needs to use land for construction must apply for the use of state-owned land according to law; However, the establishment of township enterprises and villagers' use of land collectively owned by farmers of the collective economic organization is approved according to law, or the use of land collectively owned by farmers is approved according to law for the construction of public facilities and public welfare undertakings in townships (towns) and villages. The state-owned land applied for according to law mentioned in the preceding paragraph includes land owned by the state and land originally owned by farmers' collectives requisitioned by the state. "
In particular, Article 63 of the Land Management Law clearly stipulates: "The land use right collectively owned by farmers shall not be sold, transferred or leased for non-agricultural construction." Accordingly, the land collectively owned by farmers, whether cultivated land or collective construction land, can only be converted into construction land after being expropriated and converted into state-owned land. Moreover, according to the compensation standard for land acquisition, farmers can only get compensation of 30 times the annual output value of agricultural land at most. This means that farmers have no right to dispose of collective land, in fact, they have no land property rights, so they cannot obtain the benefits of land transfer.
The above-mentioned legal provisions strictly limit the scope of using collective land for non-agricultural construction and only allow rural collective economic organizations to build their own houses for their own use. That is, members of the collective economic organization can use the land of the collective economic organization to run enterprises or build houses, but they may not transfer, transfer or lease the right to use the collective land. In other words, the transfer of collective construction land to enterprises and individuals outside the township is prohibited by law. However, in reality, a large number of rural collective construction land has broken through the restrictions of national laws and regulations, and has been transferred to enterprises and individuals other than rural collective economic organizations through leasing, transfer, cooperation and shareholding. Especially since the reform and opening up, local governments have been used for industrial park construction and urban construction through circulation, which has become an indispensable part of economic development and urban construction land. On the one hand, with the economic construction and urban development, the national construction land index alone is far from meeting the demand, and rural collective construction land is needed as an important supplement; On the other hand, the current state land expropriation method infringes on farmers' interests and is increasingly resisted. Farmers are more inclined to choose land circulation and keep their ownership unchanged in order to safeguard their own interests.
Restricted by legal conditions, the circulation of rural construction land use rights is greatly restricted.
Four, all localities actively explore the transfer of rural collective construction land.
It is undoubtedly very correct for China to implement the land use control system, especially the strictest farmland protection policy for agricultural land, and restrict its circulation without changing its agricultural use. However, under the condition of market economy, rural construction land is also restricted and restrained, which makes it unable to play its due role to some extent. The direct entry of collective land into the market will contribute to the effective allocation of land resources and give full play to the role of land, so all localities actively explore the circulation of collective construction land use rights. The Ministry of Land and Resources has carried out pilot projects in Suzhou, Jiangsu, Wuhu, Anhui, Huzhou, Zhejiang, Anyang, Henan and Guangdong provinces.
1. Practice of pilot cities
200 1, Wenzhou city, Zhejiang province took the lead in introducing new measures to stipulate that farmers' collective construction land use rights can be transferred. The Measures stipulate that when buildings and structures on collective construction land are transferred according to law, their land use rights can be transferred accordingly. Transfer methods include sale, gift, exchange and share pricing. In the urban (town) planning area, when the collective land use right is transferred, the municipal and county governments first expropriate the land as state-owned, and then go through the formalities with reference to the transfer method of state-owned land. Outside the planning area, the circulation scope of farmers' homestead has expanded from the original circulation in the same village to the circulation in the same county. After the transferee returns the original homestead to the village collective, the ownership of the newly transferred land remains unchanged and there is no need to pay the land transfer fee. The circulation of collective construction land outside the homestead adopts different circulation methods according to its different uses, and the taxes payable are also different.
On June 5438+065438+ 10, 2002, Kunshan and Haimen, as the pilot projects of land transfer reform in Jiangsu Province, stipulated that the transfer of collective construction land use rights must conform to the overall land use planning and urban planning, and strictly limit the scale of urban and village construction land; According to the local market supply and demand situation, formulate the annual plan for the circulation of collective construction land use rights in this area.
In June 2003, the Guangdong Provincial Government issued the Notice on the Trial Transfer of Rural Collective Construction Land Use Right, which made it clear that the rural collective construction land use right can be listed for transfer, sold, transferred, leased or mortgaged, and must meet four conditions: first, the construction land approved for use or acquisition; Second, it conforms to the overall land use planning and urban construction planning; Third, handle land registration according to law and obtain land ownership certificate; Fourth, the boundary is clear and there is no ownership dispute. Special emphasis is placed on the income tilting towards farmers, and about 50% of the income from the transfer of rural collective construction land use rights is used for farmers' social security arrangements; Part of the remaining 50% will remain in the collective economy of collective development villages, and most of it should be distributed to farmers.
The practices in the above places are different, and there are many problems in the pilot, but how to protect the interests of farmers and ensure that agricultural land will not be transferred in disguised form by grassroots governments has aroused great concern.
2. Social development and market economy need the innovation of laws, regulations and policies.
The current land laws and policies have many restrictions on the rural collective land use system, especially the use of collective construction land, which has a negative impact on the development of market economy. With the development of market economy becoming more and more mature, it is urgent to face up to farmers' collective land ownership, reform the system of paid use of collective land, establish and improve a reasonable and standardized transfer mode of rural collective land use right, and need to innovate in laws, regulations and policy systems.
On June 5438+1 October1day, 2005, the Administrative Measures for the Circulation of the Right to Use Collective Construction Land in Guangdong Province (hereinafter referred to as the Measures) came into effect, which is the first provincial regulation to regulate the circulation of collective land. The right to use collective construction land in Guangdong Province can be sold, leased, transferred, sublet and mortgaged, and all rural commercial land is transferred through the market. The "Measures" mainly have the following innovations:
First, the right to use collective construction land, like state-owned land, can be sold, leased, transferred, subletted, mortgaged and priced as shares. After that, the price of land no longer depends on its "identity", but on its geographical location. At present, in Guangdong, except for the collective land use right, real estate development cannot be carried out, and the land for other purposes has been evaluated by the evaluation agency, and the land price of collective land and state-owned land in the same position is exactly the same.
Second, in the process of collective construction land use right transfer, it is entirely up to farmers to decide whether to transfer, lease or buy shares at a fixed price, and it can only be implemented with the consent of more than two-thirds of the members of the collective economic organization or villagers' representatives, so that farmers' land ownership can be truly reflected.
If the state expropriates or requisitions land for collective construction in accordance with the law for public interests, the collective owners and users of the land shall obey, but they must obtain the consent of more than two thirds of the members of the villagers' meeting or more than two thirds of the villagers' representatives of the collective economic organization. That is, the villagers' consent must be obtained before approval, which guarantees the villagers' right to know and participate.
Third, peasant collectives can legally negotiate with industrial enterprises and independently transfer and lease collective construction land. This is conducive to the formation of the market price of rural collective land use rights and provides a reference system for the government to formulate compensation standards for land acquisition. Because the direct entry of agricultural land into the market is conducive to reducing the cost of industrialization. Farmers negotiate directly with industrial enterprises, and the price after collection may be lower than that of the government.
Fourth, the proceeds from the transfer of collective construction land use rights should be included in the unified management of rural collective property, of which more than 50% should be earmarked for farmers' social security arrangements and should not be misappropriated, providing the bottom line for farmers' interests.
In the absence of relevant national regulations, Zhejiang, Jiangsu, Guangdong and other coastal developed provinces and cities carried out pilot projects according to the needs of economic development, issued a series of rural collective construction land transfer management methods, explored the rural collective construction land transfer mechanism, achieved standardized and orderly management, and gained preliminary experience, which also laid a policy foundation for revising the land management law and other relevant laws and regulations and reforming the land use system. In order to further standardize the management of collective construction land use right transfer in China, according to the State Council's Decision on Deepening Reform and Strict Land Management, the Ministry of Land and Resources studied and formulated the Regulations on the Management of Collective Construction Land Transfer in 2006.
At the same time, the Ministry of Land and Resources and the National Development and Reform Commission also jointly issued a document to explore the policy of "linking the reduction of rural construction land with the increase of urban construction land" in a pilot way.
Five, the basic principles of collective construction land use right transfer reform
1. Reasonably allocate land resources, promote the reform of collective construction land use system, and allow rural collective construction land to enter the market.
As a special commodity in factor market, land should be adjusted and allocated through market mechanism. First, rationally allocate land resources according to the principle of maximizing land benefits; The second is to realize the consistency of land price and value through market mechanism. The entry of rural collective construction land into the market will give full play to the asset benefits of rural collective land and accelerate the formation of a market-oriented allocation mechanism of land resources.
2. Effectively protect farmers' land property rights and give collective construction land the same rights as state-owned construction land.
Retain the ownership of rural collective land and allow collective construction land to directly enter the market circulation under the premise of meeting the conditions, so as to realize the equality of rights between collective land and state-owned land, establish a unified, standardized and orderly urban-rural land market system, and lay a legal foundation for comprehensively promoting the circulation of collective construction land use rights and bringing it into the standardized and institutionalized track.
3. Intensive land conservation, strengthening total control and use control, and standardizing the circulation of rural collective construction land.
Intensive and economical use of land resources is the basic policy of the state to guide land development and utilization, and it is also the basic principle that collective construction land circulation must follow. Only through economic, administrative, planning and other means and measures can we change the extensive, disorderly and inefficient situation of rural construction land and promote the economical and intensive use of land.
While allowing collective construction land to enter the market, it should be regulated by means of total supply control of collective construction land, overall land use planning and overall urban planning, and the supply index of collective construction land should be included in the annual supply plan. When agricultural land is converted into construction land, the application and approval of land requisition must be fulfilled in accordance with the principle of land use control.
4. Improve the relevant system and legal system of collective construction land transfer, and ensure the better connection of national land policies.
The circulation of rural collective construction land inevitably involves the connection of relevant systems and policies, such as land expropriation, urban master plan and land use master plan, land use control, land income distribution and a series of supporting policies. Improve relevant policies, ensure the openness, fairness and justice of collective land transfer procedures, reflect farmers' rights to land, safeguard farmers' legitimate rights and interests, ensure the convergence of national land policies, and ensure the smooth progress of reform and rural social stability.