(A) the existing legal constraints
1. In reality, the circulation of the right to use collective construction land conflicts with the current legal provisions. Article 43 of the Land Management Law of the People's Republic of China 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, members of this collective economic organization use the land of this collective economic organization to run enterprises or build houses. At the same time, Article 63 of the Law stipulates: "The right to use collective land shall not be sold, transferred or leased for non-agricultural construction. However, enterprises that meet the overall land use planning and obtain construction land according to law, except for the transfer of land use rights according to law due to bankruptcy, merger and other reasons. "According to the above provisions, members of a collective economic organization may use the land of the collective economic organization to start a business or build a house, but they may not transfer, transfer or lease it. Therefore, the law prohibits the circulation of the right to use collective construction land, and the reality of the circulation of the right to use rural collective construction land obviously conflicts with the provisions of the current law.
2. Although the law stipulates the special circumstances of the transfer of the right to use collective construction land, it lacks corresponding provisions. For example, Article 183 of the Property Law stipulates: "The right to use the construction land of township enterprises shall not be mortgaged separately. If buildings such as factories of township enterprises are mortgaged, the right to use construction land within the occupied area shall be mortgaged together. " Because this part of the collective construction land use right is allowed to be mortgaged, once the mortgage is realized, the collective construction land use right will be transferred. However, it is not clear how to deal with the right to use construction land transferred due to the realization of mortgage, and whether there are restrictions on the transferee. At the same time, according to Article 63 of the Land Management Law, there are no specific operational provisions on the transfer of the right to use construction land in this case.
(B) Problems in the property rights system
The dual land system of urban-rural division and unclear definition of farmland property rights have greatly restricted the circulation of rural construction land, resulting in a series of social and economic consequences that violate the original intention of laws and policies. Judging from the current land legal system in China, the dual land system of urban land owned by the state and rural land collectively is implemented. For a long time, China's constitution, land management law and other land management laws and regulations have made different provisions on these two kinds of land ownership, especially in the two kinds of land use rights, there is a great difference between national land use rights and collective land use rights. According to the land management law, the right to use state-owned land can be sold, transferred, leased and mortgaged, that is, the law is designed and operated according to the mode of real estate usufructuary right; However, for the right to use collective construction land, it cannot enjoy the right to dispose of usufructuary right, and the obligee can only transfer its rights under certain circumstances such as capital contribution, shareholding and joint venture. In principle, the right to use collective construction land may not be transferred, transferred, leased or mortgaged. At the same time, there are still some problems in the current farmland system, such as vague property rights and the absence of ownership subjects. Although the current rural land system clearly stipulates that land belongs to collective ownership, that is, collective ownership of property rights, the collective direction is not clear, and who is the representative of rural collective land ownership is also vague. Township governments, village committees, villagers' groups and individual farmers all enjoy some aspects of land rights, but they are not the subject of ownership. In some places, in order to solve the problems of unclear subject, unclear source and unclear boundary of land property rights, the land ownership owned by villagers' groups or township farmers' collectives is determined to be owned by village farmers, which is convenient for organization and management and leads to confusion of land property rights relations.
(c) Related conflicts of interest
At present, the most prominent problem in the circulation of rural construction land is the conflict of interests among farmers, collectives and local governments around land appreciation. With the circulation of rural construction land, the function of land has changed from the traditional "production" function to the "asset" function. The land demand in the process of industrialization and urbanization highlights the contradiction between farmers' collective land property rights and farmers' interests at the institutional level.
1, the local government obtained most of the value-added of rural construction land circulation by virtue of "public power". Due to the strict land control, examination and approval procedures, land supervision and fiscal and taxation policy constraints of the central government, the increase in land acquisition costs of local governments objectively promoted the circulation of collective construction land. For developers, that is, land users, the pre-approval procedures for land acquisition are cumbersome and time-consuming, forcing them to obtain land directly from the collective. The transfer of collective construction land use right can avoid complicated land acquisition procedures and is not bound by "land use indicators", which largely replaces the land acquisition system. Local governments directly participate in the distribution of land transfer income in the circulation of rural construction land by virtue of "public power" Therefore, the biggest beneficiary of rural construction land transfer is the local government.
2. Farmers' income in rural construction land transfer is asymmetric with their land rights. As the dual identity of land owners and land users, farmers' rights and interests have not been fully realized in the transfer of rural construction land. Both the village farmers' collective as the owner and the small-scale villagers' group farmers' collective lack an effective restraint mechanism for managers. Therefore, as members of the peasant collective, it is difficult for farmers to guarantee the corresponding benefits from the circulation of collective construction land use rights.
3. As a benefit-sharing group, the "managers" of rural collective organizations have gained great benefits from the transfer of rural construction land. Driven by land appreciation, grass-roots organizations that manage rural land have become the main promoters and vested interests of the circulation of rural collective construction land use rights. In the end, the stakeholders of rural land transfer and the ultimate beneficiaries of collective land transfer are "township and village" grassroots organizations. They are not only the representatives of "collective ownership", but also the information superiority parties that contact local governments to master superior policies, and eventually become the main body of rural construction land circulation. As the manager of collective land ownership, he holds most of the value-added enjoyed by collective land owners.