Research On The Legal Regulation Of The Transfer Of Collective Construction Land Use Rights

With the accelerating of industrialization, urbanization and agricultural modernization, transferring of the collective construction land use right represents the general trend in China. Because of the lack of concrete system construction in microcosmic level, the urban and rural land market is still in a state of division, which has seriously blocked the economic and social development. In legal nature, collective construction land use right is an important usufruct right. Transferring of the collective construction land use right in nature is a civil juristic act, with containing many important contents of administrative legal system. The reform of legal system of transferring of the collective construction land use right experienced the basically prohibited stage before the reform and opening up, the disordered and spontaneous stage from the reform and opening up to1990age, and the procedure standardization stage so far. Decision of the CPC Central Committee on rural reform and development of a number of major issues by the Party’s Third Plenary Session of the seventeen has provided channel and policy room to establish a unified urban and rural construction land market. Decision of the CPC Central Committee on deepening the reform of a number of major issues by the Party’s Third Plenary Session of the eighteen has put forward clearly to establish a unified construction land market, carrying out the policy of equivalent right and price of rural business collective construction land and State-owned land. The reform of legal system of transferring of the collective construction land use right has made significant progress in the basic conditions of transferring, the income distribution system, the index transaction system and the transferring system of rural homestead right for building, which conforms to the tide of history, promotes the social and economic development and lays the foundation for the restructure of the legal system of transferring of the collective construction land use right.Currently, the main problems in the legal system of transferring of the collective construction land use right perform in differences of policy objectives between the central government and local governments, delay of construction of legal system, obviousness of internal conflict, and not functioning effectively by the market mechanism. Thus, land use order and objective to protect cultivated land have been seriously challenged, obligee lacks reliable right guarantee, relation of income distribution is badly dislocated, and collective land assets loss seriously. The problem of "Small property room" is the specific reflection of imbalance of two dual land system, and is the consequences of current faulty legal system of transferring of the collective construction land use right. To solve the problem of "Small property room", mechanism of transferring of the collective construction land use right should be perfected, rural land use planning should be strengthened, housing security system should be improved, and different measures should be taken according to different situations.The restructure of the legal system of transferring of the collective construction land use right involves many aspects of adjustment of interests, so it is an extremely arduous and complex integrated system engineering. Rights protection and free transferring is the value target in private law, while protection of cultivated land and land planning is the value target in public law. Equality, justice, safety and efficiency are the particular value targets. In the process of reconstruction, the principles of socialist public ownership, voluntary circulation, land use regulation, intensive use of land and balancing urban and rural development should be carried out. The civil law system of transferring of the collective construction land use right is the legal system to recognize and protect the legal rights of oblige, which includes subjects, species, contracts and so on of transferring of the collective construction land use right. Administrative legal system is the important aspect of the construction of the legal system of transferring of the collective construction land use right, including cadastral management system, land use control system and income distribution system. Perfect cadastral management system is the prerequisite of effective operation. To implement land use control system effectively, scientific and operational land use planning should be formulated. Whether the reform of the system of transferring of the collective construction land use right can advance smoothly depends to a large extent on whether the relationship of distribution of income is reasonable. A sound dispute settlement system helps to solve the increasing disputes better. Reconciliation, mediation, administrative way, arbitration and the judicial way are the resolutions commonly used.Various supporting systems of different aspects are needed to enhance and consolidate the reform of the legal system of transferring of the collective construction land use right. Constructing a new type of collective construction land property rights system and reflecting a system protection become the prerequisite of restructure of the legal system of transferring of the collective construction land use right. Though a series of reforms have been carried out in land expropriation system, there are still many problems to be solved. Establishing the system of transferring of the collective construction land use right should be the basic direction of China’s land expropriation system reform in the future. It has an important significance in the restructure of the legal system of transferring of the collective construction land use right to establish the system of symbiotic increase and decrease relationship between urban and rural construction land. To maximize the interests of villagers, reform of local self-governing organizations in rural areas should be carried out to realize the mechanism of property rights incentive, power restriction and balancing of interests. Democratic decision-making, participation and supervision system of villagers’ committee should be improved. System of transferring of the collective construction land use right is closely connected with the rural social security system. On the one hand, transferring of the collective construction land use right can promote the development and improvement of the rural social security system; on the other hand, reform of the legal system of transferring of the collective construction land use right should be founded on the rural social security system.