195 1 land reform issues land certificate.
The "land reform" in 1950s was a great event for farmers in China. The following contents are excerpted from the work report on issuing land certificates in Yaowan Township, Fengyang County Committee in 195 1, which can quite reflect the public's reaction at that time:
"Poor farm workers are ecstatic after hearing the certification. Xu zhibang, a poor farm worker, said,' when can I get the land certificate? I have never seen a big flag in my life, and now I have a baby!' Another poor farm worker's military family said:' When the land is divided, the county magistrate will stamp it, and future generations will not grind their teeth or quarrel, and it will be passed down forever!' Tenant farmers and middle peasants are happy to issue land certificates because they turn farmland into their own fields and cultivate their own crops. Yang Rong is a middle-aged tenant farmer who has been farming for generations. This time, he said:' After obtaining the land certificate, the leased land will become a field, so you must refuel when you go back.' Because the middle farmer Harada did not move, he thought that it was irrelevant to issue the certificate sooner or later and held a dispensable attitude. Li, a middle farmer, didn't come to the certification meeting. He said, "It's none of our business to open the certification." . You can go to the meeting. The wheat in my field is half baked.' Because the rich peasants occupy a lot of land, they want to "set the rules early" as soon as they hear about issuing certificates. Rich farmer Wan Zibang said:' In the past, people were afraid to say that they had built a house in front of my house. Now, the boundaries are clear, and it is good that everyone has property rights. The main reason is that the land reform has hit hard, and farmers are afraid to change their fields and settle old scores. Landlord Fan said: "After liberation, Sanqi was sublet and the income was limited. Now that the government is generous, it is also appropriate to give a piece of land, issue a certificate and reform through labor. "
"Take the village as the unit for certification (the landlord does not participate), hold a certification ceremony, and publicize the invalidation of the old deed. The land certificate is a legal contract, and when the land and house ownership certificates are issued, everyone is in high spirits. When the village cadres of Shizifen held out the land certificate, the masses applauded 10 minute. Shilipu farmers took the initiative to bow to the statue of Chairman Mao when they received the certificate. Fang Guiwen, a poor middle peasant, said,' If you get the red deed, you get the land. Really turned over! "
"Specially convene landlords to give lectures, announce the Regulations of the East China Military and Political Commission on Controlling Landlords in Areas where Land Reform is Completed, and announce on the spot that illegal landlords are approved and controlled by the county, how to strengthen control, how to cancel control, and then issue land certificates. A landlord went home, lay in bed, sighed and said,' It's just a few acres of land!' "
"195 1 year land certificate" means that farmers have land ownership.
195 1 what is the nature of the "land certificate" issued by the land reform? 1950165438+125 October, Article 1 of the Certificate of Ownership of Land and Property issued by the Ministry of Interior of the Central People's Government explained this:
According to Article 27 of the program: "Guarantee the ownership of land acquired by farmers" and Article 30 of the Land Reform Law, the people's government issues land certificates after the completion of land reform: In order to effectively protect the ownership of land and real estate of people from all walks of life after the land reform, consolidate and improve farmers' production sentiment, all land and real estate ownership certificates will be issued regardless of the newly divided land and the original land. Similarly, all the land and houses distributed to landlords after the land reform were also distributed. When issuing a new certificate, according to the provisions of Article 30 of the Land Reform Law, the land contract before the land system reform shall be void and cancelled. "
In other words, 195 1 The "land certificate" issued to farmers is to protect farmers' "ownership" of allocated land.
Step-by-step audit: system design to prevent rural land sale
Worried that farmers will blindly buy and sell after they get land ownership is a very popular reason in the voice of opposing land privatization at present. The Land Certificate was issued on 195 1. While protecting farmers' land ownership, the authorities also have the same hidden worries mentioned above, so they have adopted a series of system designs. 1On May 7, 955, the Notice of the State Council on Rural Land Circulation and Deed Tax Work was an important link in this series of system design. The notice said:
"Although the law does not prohibit the sale of rural land, farmers should be prevented from selling or pawning land unnecessarily in practical work. Therefore, the sale, pawn and other transfers of rural land should be reported to the Township People's Committee for examination and approval, and then to the district office or the district people's Committee for approval (if there is no district, it should be reported to the county or municipal people's Committee for approval), and a letter of introduction from the district office or the district people's Committee (if there is no district, the letter of introduction from the county or municipal people's Committee) can be obtained before the deed tax formalities can be handled. The above-mentioned organs must find out the reasons for applying for issuing letters of introduction for land sale and pawn, and deal with them separately: farmers who sell or pawn their land due to difficulties in production and life should help them solve their difficulties so that their land will not be sold or pawned; Farmers should not be restricted from exchanging far and near fertile fields for the convenience of production; Letters of introduction should not be issued to those who buy land for the purpose of renting land for exploitation, and those who sell or publish land for a living without proper employment and production. "
"Agriculture 60" changed the private ownership of rural land into collective ownership.
Before long, the "big contract" in the hands of Xu Zhibang, a poor middle peasant, was treasured as a "treasure". With the arrival of socialist transformation, rural land ownership has quietly changed, and finally became "collective ownership". For this secret process, here might as well use a very popular legal case to illustrate:
Q: Can the land certificate issued by the government during the land reform be used as a certificate to determine the right to use the homestead?
A: In some places, when adjusting the homestead or other land, some farmers demand that the so-called "homestead returning to home", "clearing the original place" and "following the ancestral business" be based on the land certificate issued by the people's government during the land reform, which is wrong. It violates the principle of collective ownership of socialist land in China and does not conform to the current national policies and decrees. In the early days of liberation, in order to abolish the feudal or semi-feudal land system as soon as possible, land reform was carried out nationwide, and land exploited by landlords and others was confiscated and distributed to farmers with little or no land (or reserved for public use). Implement the land system of land to the tiller and issue land ownership certificates to farmers to protect their ownership of land. After the land reform, based on the principle of voluntary and mutual benefit, the party gradually guided farmers to join cooperatives and take the road of cooperation. 1952, primary agricultural production cooperatives were generally established; 1956, primary agricultural production cooperatives are generally transformed into advanced agricultural production cooperatives; 1962, people's communes were established on the basis of advanced agricultural production cooperatives. According to the provisions of the Model Charter of Agricultural Cooperatives and the Model Charter of Advanced Agricultural Production Cooperatives, in the primary stage of agricultural cooperatives, land will participate in unified management in the form of shares, and farmers' private rights to land will be preserved. The land output of the cooperative will be evaluated and the land remuneration will be stipulated according to the output. After the transfer to the senior cooperative, the private land will be turned into collective ownership of the cooperative. 1962 "revised draft regulations on the work of rural people's communes" (namely "Article 60") stipulates: "The land inside the production team shall be owned by the production team. All the land owned by the production team, including the private plots and homesteads of the members. , are not allowed to rent or sell. "Therefore, the villagers only have the right to use the homestead without ownership, and the land certificate issued during the land reform naturally loses its legal effect and cannot be used as the right to use the homestead.
The above questions and answers, as a standard paradigm, can be found in many legal consultation books on rural land use. Among them, article 60 provides as follows:
"Twenty-one, the land within the scope of the production team belongs to the production team. Land owned by the production team, including members' private plots, private hills, homestead, etc. , are not allowed to rent or sell. No unit or individual may occupy the land owned by the production team without the examination and approval of the people's committee at or above the county level. "
What needs to be added is that it is problematic to take this provision in Article 60 as the legal basis for the transformation of rural land from private ownership to collective ownership, because Article 60 is only a "regulation" and "bill" from beginning to end, and has never been "turned positive".
"Nationalization" of Urban Land
1954 Constitution: Clearly protect the real estate ownership of urban residents.
Historically, urban land in China was privately owned. /kloc-The land reform in the 1950s was mainly confined to rural areas in the traditional sense. For cities including suburban land, the state of land ownership before the founding of the People's Republic of China was basically maintained, and the private ownership of land was basically continued. This treatment has a policy origin-1The Proclamation of the People's Liberation Army of China signed by Mao Zedong and Zhu De on April 25th, 949 clearly emphasized that "urban land and houses cannot be treated like rural land problems". 1the * * program adopted in September 1949 is an interim constitution. Article 3 clearly stipulates: "Protect the economic interests of workers, peasants, petty bourgeoisie and national bourgeoisie and their private property", which includes private land.
There are some differences between the constitution of 1954 and the same plan on urban land. The most important point is to delete the "protection of the economic interests and private property of workers, peasants, petty bourgeoisie and national bourgeoisie" clearly stipulated in the "One Program" and declare that "the exploitation system will be gradually eliminated and a socialist society will be established through socialist industrialization and socialist transformation"; But at the same time, it is stipulated that "the state protects the ownership of the means of production of craftsmen and other non-agricultural individual workers in accordance with the law" and "the ownership of the means of production and other capital of capitalists", and "the state protects citizens' legitimate income, savings, ownership of houses and ownership of various means of subsistence". In other words, the land ownership of urban residents, whether as means of production or means of subsistence, is still recognized and protected by the Constitution of 1954.
1954 The explicit protection of the real estate ownership of urban residents by the Constitution is also reflected in the actual data. "According to the relevant documents, until 1955, the proportion of private real estate in the total real estate of cities was still very high, with the highest Suzhou reaching 86%. At that time, in the city, the free sale of real estate between individuals was quite active. In the early 1950s, some cultural celebrities bought real estate in order to settle in Beijing. For example, Wu Zuguang bought a quadrangle, and the price ranged from 1 to 20,000 yuan. At that time, quadrangles included land and houses, and these private properties were protected by the Constitution of 1954. " (According to Yang Junfeng's Evolution and Origin of State-owned Land System in China, Journal of Gansu Administration College 2011).
Renovation of private houses: curve "nationalization" with "state rent"
1956 65438+ 10/8 The Central Committee approved the Opinions on the Basic Situation of Urban Private Real Estate and Socialist Transformation put forward by the Second Office of the Central Secretariat. The "Opinions" put forward that socialist transformation should be carried out on private real estate. The general requirement of the reform is to strengthen state control, first make the lease of private property completely obey the state policy, and then gradually change its ownership.
There are two specific ways of transformation: first, state leasing, that is, "the state implements unified leasing, unified distribution and unified maintenance, and gives reasonable profits to homeowners according to different objects." Today, "renting a house" has become a serious "historical problem". The second type is public-private partnership, that is, "the original private real estate company and some large households can organize a unified public-private partnership real estate company to carry out public-private partnership." Of the two ways, state rent is the absolute mainstream.
State leasing not only means that the owner loses the right to operate independently, but also means that the owner loses the ownership of the house-according to the relevant regulations, "the house rented by the state, ... the owner can only receive a fixed rent and cannot recover the house rented by the state"; And severely criticized the view that "some homeowners believe that the house has not been leased by the state to the whole people and still belongs to individuals". In other words, "state rent is just a means of forcibly nationalizing urban private houses but avoiding the name of nationalization." 1964 September 18, the Supreme People's Court said in the "Reply on the Problem of National Rental Housing Not Inheriting": "The owner of national rental housing has actually lost ownership. Therefore, after the death of the homeowner, the rented house cannot be inherited by his family. "
1982 constitution: "urban land belongs to the state"
At present, the earliest known policy document advocating one-time nationalization of urban land is the Reply on the Outline of Urban Land Nationalization issued by the State Housing Management Bureau of the Ministry of Finance and State Taxation Administration of The People's Republic of China 10+065438 for the record.
1956 the opinions on the present situation of urban private real estate and socialist transformation approved by the central government has included the clause that "all private urban vacant lots, street foundations and other real estate shall be nationalized after taking appropriate measures". For the record, "real estate such as urban open space and street foundation" is interpreted as "real estate such as street foundation should include private homestead with houses built in cities and towns"; And stressed that "no matter what open space (including flag land), no matter who's land (including exploiters and working people) should be nationalized." Urban private residential land has finally begun its historical process of nationalization.
However, just as Article 60 is not the legal basis for rural land to be collectively owned, although the record has been published, it has not abolished the private ownership of urban land in law, at least in name, maintaining the coexistence of state ownership, collective ownership and private ownership of urban land. Until the 1982 constitution was promulgated.
1982 65438+On February 4th, the Fifth Session of the Fifth National People's Congress adopted the new Constitution of People's Republic of China (PRC). Article 10, paragraph 1 adds the following stipulation concisely and clearly: "Urban land belongs to the state". The book Land Economics published by Agricultural Press 1989 describes this epoch-making change:
"Before the Fifth Session of the Fifth National People's Congress in 1982, China did not officially declare the nationalization of all urban land. Although most urban land has been owned by the state, a small part is still owned by collectives and individuals. Therefore, for a long period of time, urban land is dominated by state ownership, and the state, collective and individual ownership coexist at the same time. According to the statistics of 226 cities in China from 65438 to 0982, the land area of urban built-up area is 7438 square kilometers, and the land owned by collectives and individuals is about 335 square kilometers, accounting for about 4.5%. Collectively owned urban land is mainly the land occupied by individual workers in the city when they organize to form cooperatives and turn their workplaces into cooperatives. Urban land is owned by individuals, mainly the homestead of individual self-occupied houses and individual rented houses below the starting point of socialist transformation at that time. Article 10 of the Constitution of People's Republic of China (PRC) adopted by the Fifth Session of the Fifth National People's Congress in 1982 stipulates: "Urban land belongs to the state. "It not only clarified the ownership of the original state-owned land, but also declared the remaining non-state-owned land in the city as state-owned land through legislation. In this way, land nationalization is free, but it has not caused fluctuations. The reason is that the land involved is small, and the ownership of private land has been strictly restricted for a long time, and it is only allowed to be used, and it is not allowed to buy, sell, lease or transfer in other forms. Private ownership of land has long been extremely incomplete. "
New Century Weekly 20 10 No.5 "When did the private property right of urban land disappear? , which says:
Article 10 of the Constitution of People's Republic of China (PRC) promulgated by 1982 stipulates that' urban land belongs to the state', which has never appeared in the previous three constitutional texts. The fait accompli of urban "land reform" was written into the constitution, and there was no compensation for citizens' property losses. At that time, it was in the early stage of reform and opening up, and the public's awareness of rights was weak, and there was doubt about the word' private'. No one dared to raise objections. In addition, another "cultural revolution victory" has been preserved, that is, public-private joint ventures have been transformed into state-owned enterprises without any legal procedures. If the above two kinds of deprivation are implemented today, it will inevitably lead to social unrest. "
At present, there is no information about how the article "Urban land belongs to the state" was written into the Constitution of 1982. After it was written into the constitution, it did not attract the attention of the people at that time. However, after the promulgation of the constitution, it has undergone four revisions, almost every time involving the revision of the land system.
The most crucial amendment is1the constitutional amendment adopted by the First Session of the Seventh National People's Congress on April 2, 988. This amendment amends the fourth paragraph of Article 10 of the Constitution to read: "No organization or individual may occupy, trade or illegally transfer land in other forms. Land use rights can be transferred according to law. " On March 6-4, 2004, the Second Session of the Tenth National People's Congress adopted the fourth amendment to the Constitution, which amended the third paragraph of Article 10 of the Constitution to read: "The state may expropriate or requisition land and make compensation according to the law."