| "Property Law" after 14 years in discussion and debate, formal consideration by the National People's Congress seven times, in March 16th,2007 at the National People's Congress by the fifth meeting, and in that year on October 1 it was nationally implemented. It should be said, "Property Law" The introduction of a positive sense, which was raised to equal protection of the state, collective and private property rights, is the legal level of importance for the citizens and maintenance of private rights to strengthen the concept, which is the history of legal development in China significant progress in history. "Property Law" provides a chapter of state-owned construction land use right system of land, which, for the construction land use right treatment is given after the expiry of their views. "Property Law" Section 149 provides:residential construction land use rights expiration of the period, the automatic renewal. Non-residential construction land use right of renewal after the expiry, in accordance with provisions of the law. The houses on the land and other real estate ownership, there is agreement, in accordance with the agreement; not prescribed or not clear, in accordance with the laws and administrative rules and regulations. This method of construction land shall be divided into land for construction of residential and non-residential construction sites, for its treatment after the expiry of the provisions were to be different. After the expiry of the period Land for housing construction are to be renewed automatically. It should be said, the content of the Act provides for the majority of citizens, has a great significance, which means the right to use land for housing construction after the expiration of 70 years, there is no problem of houses were nationalized without compensation. However, if we carefully analyze, you will find the articles there are still many worthwhile for us to think, to ask questions. For example:Does that mean the automatic renewal will not need to go through any formalities can be achieved? Is the free use of land for construction or still have to pay land transfer, or to be used in other ways? How to determine the time of renewal? Construction of housing for mixed land use rights after the expiration of how to deal with? "Living Change of Business" how to define the nature of space, after the expiration of how to distinguish? These need to be clear on the legal issues. However, our "Property Law" is not mentioned. Moreover, land for non-residential construction second phase, there is a convention adopted by convention, not prescribed or clearly handled in accordance with the law, this attitude is not responsible for and does not mean much. Because in practice the law is certain:When the term expires, the applicant whose application is not received approval, the building owned by the state to obtain free of charge. But what is the justification obtained free of charge, is mandatory or comply with legal requirements? Questions on these issues, to stimulate interest in the author as the author of the study and thus subject to construction land use right for our time perfecting the system can put forward their own proposals and the corresponding point of view, Beijing construction land use rights of the expiration of the period problem will involve almost all real estate people, including the author himself. For this problem, whether in legislation or law enforcement, judicial settlement can be given, these are what we expect.This article is divided into five parts, about 3.2 million words. The first part, focused on China's current term of the relevant construction land use rights provisions of the relevant law discussed for several parts of the argument of this article for theory, the legal groundwork. China's current period of construction land use rights law are "property law" in Article 149 of the right to use land for construction of residential and non-residential construction land use rights after the expiry of the deadline approaches, "Urban Real Estate Administration Law," 21,22 were also to be a requirement, the other "urban state-owned land use right transfer and the transfer of Provisional Regulations" section 40,41,42 has a corresponding article and other laws.The second part the proposed construction land use rights challenge facing the expiration of the period, these problems are identified and the existing legal provisions can not be solved. For example:the renewal of construction land use rights issue, whether the payment due, or the problem of how to pay for mixed space and "live to change providers," there is no corresponding requirement that we face the problem out of nowhere, no laws, but also for non-residential construction land use right after the expiration of the ground made the building owned by the state free of charge unfair and unreasonable and so on. In addition, the chapter presented the current land use right in the building right to act in various problems arising in the process, the performance of the executive in the face of land use right transfer contract, showing its unique "distinguished" status rather than equal subjects arm's length negotiations between, and the judiciary in the face of the corresponding transfer contract and solve problems, regardless of when the line when the people, not really according to the law or that no laws, and this will inevitably lead to confusion in practice. Therefore, this brief description of the specific solutions below provides a premise of the question.The third part of the construction land use right for an introduction to classification in this chapter describes the development of construction land use rights, concept, nature, and the distinction between the concepts, methods, and so obtained, a more comprehensive understanding of the construction land use rights, by introducing the proposed Our construction land use right term system needs improvement. Construction land use right refers to the construction land use rights according to law of the land for the state to enjoy the land possess, use and income rights, the right to use the land for the construction of buildings, structures and ancillary facilities. Belongs to the nature of the usufruct property, and land use rights and land rights is a clear distinction, and its made in China is currently the main way to transfer and allocation is made, the lease is less, but I think that should be As a major lease of construction land use rights to obtain the main way, and the combination of transfer and allocation to constantly improve our system of construction land use right term.The fourth part, to improve the system of construction land use right term of the basic principles should be followed, the author advocates the principles of this chapter shall comply with five principles:adhere to the principle of land ownership, and this is the basic land system, and never can change; land ownership and land the right to use the principle of separation; reasonable land use and protection of the principle of land to achieve sustainable development; adhere to the ground objects and the binary as the principle of land; protection of construction land use right of the legitimate rights and interests of the principle. Implementation of these five principles will be able to solve the construction land use rights challenges facing the expiration of the period provided in the right direction.The fifth part is the period of construction land use right system proposed to solve the construction land use rights issues arising from the expiry of the improvement program.1. Residential construction land use right expires, the author proposed the establishment owners to democratic self-management model to maximize the subjective views of the owners; for the payment and renewal, proposed a rent system to be addressed; for the property is divided into different hybrid condition for renewal or non-renewal given treatment; 2. Non-residential construction land use rights after the expiration of the ground the building to give building owners the right to request and purchase requests for renewal of rights to protect their legitimate rights and interests; 3. For the transfer of land, to reduce the administrative color, the implementation of the Land Fund system to allow the medium-term contract (i.e., renewal in the land transfer medium term to enhance the value of land, prevent the decline in real estate value); 4. to promote state-owned land lease system, to achieve land tenure system and the transfer, the effective integration of the allocation system, the authors proposed to extend the lease period, uniform rental contract; should not be taken for the auction, tender of the land, may consider the change in rent system should be allowed lessee can purchase the Government rent within a certain period of time income right; land lease combined with the transfer of allocation to build a more rational system of land use rights.Finally, overview the text. I believe that we fully learn the civil law and common law as well as advanced legal system in Hong Kong, there will truly meet China's own land-use system. This system is fully in line with our reality and that is able to show the times and with Chinese characteristics, not only the legal concept of advanced and practical operability is conducive to private rights to land and it helps to maintain the macro-management of the land the new period of construction land use right system.In this paper, the writing process, the main use of theory with practice, concept analysis, international comparative analysis of the legal system, historical and real analysis and other research methods, writing the article provides a good direction. |
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