Research On The Justicability Of Collective Land Expropriation Approval Behavior

Land is not only a material production material for farmers living above,but also a basis for its survival and development.The land ownership structure of China’s dual system makes the country collect a large amount of land owned by the peasants in the process of large-scale economic construction and urban development.The Land Administration Law stipulates that the collection of collective land must be examined and approved by the State Council or the provincial government.The collective land acquisition and approval behavior of the State Council or the provincial people’s government serves as the core link in the whole land acquisition process,and plays a leading role in the land acquisition process.The specific action of the approval means that the collective ownership of the collective land is transferred from the collective organization to the state.In the litigation dispute arising from the collective land acquisition,the lawsuit against the land acquisition and approval is gradually increased.In judicial practice,there is a big disagreement over whether the collective land expropriation can bring an administrative lawsuit.Some courts believe that the collective land expropriation is an internal administrative act,and does not have a real impact on the land expropriated person and the land acquisition decision is an administrative organ.The final ruling was made,and the lawsuit filed by the parties was dismissed,thus recognizing that the levy approval decision made by the State Council and the provincial people’s government did not have the lawsuitability in administrative litigation,and did not belong to the scope of the people’s court.Some courts have incorporated the land acquisition approval decision into the scope of the administrative lawsuit based on the externalization theory of internal administrative actions and the new Administrative Procedure Law revised in 2015.It is determined that the collective land acquisition decision can be filed in accordance with the law.The divergence of collective land acquisition and approval in judicial practice leads to the inconsistency of judicial decisions,and it is difficult to effectively protect the legitimate rights and interests of land-expropriated persons.The main reasons for the divergence of collective land acquisition and approval in judicial practice are the conflicts stipulated by laws and regulations,the unclear nature of land acquisition,the ambiguity of the nature of land acquisition and the dislocation of land acquisition decisions.Due to the existence of these reasons,the litigation brought by the parties to the collective land acquisition approval can not be completely accepted and examined by the court,so that the parties to the land rights dispute cannot obtain effective judicial relief.In the process of land expropriation,from the point of view of the specific procedures and behaviors of the collective land acquisition and approval behavior,the collective land acquisition approval behavior is fundamentally different from the internal administrative behavior and abstract administrative behavior in the administrative behavior,and multiple stages.The predecessor behavior in administrative behavior is also different,and it is a specific administrative act in multi-stage administrative behavior.The collective land acquisition and approval is a specific administrative act made by the administrative organ,and it has a practical impact on the rights and obligations of the land expropriated person.According to the provisions of the Administrative Litigation Law,the land acquisition approval behavior of the State Council or the provincial people’s government shall be recognized as a collective land acquisition decision.At the same time,the approval shall not belong to the administrative final ruling of the administrative organ.Its legality is reviewed and it has the suability of administrative litigation.In order to standardize the collective land expropriation rights of the administrative organs and protect the legitimate rights and interests of the land expropriated persons,it is legally recognized that the collective land expropriation and approval actions carried out by the State Council or the provincial people’s government have the admissibility of administrative litigation,based on the current judicial environment in China.The status quo of legislation,the construction of a series of institutional measures to improve the admonition of land acquisition and approval.It is necessary to improve the laws and regulations on land acquisition and amend the Administrative Reconsideration Law or the Administrative Litigation Law so that the two can be effectively linked in specific judicial practice.At the same time,it is necessary to amend and improve the Land Administration Law and clarify the land.The examination authority for land acquisition application materials in the process of expropriation shall enable it to better play the role of regulating the land expropriation rights of administrative organs and safeguarding the legitimate rights and interests of land expropriated persons in the process of land expropriation;constructing a judicial review path for the approval actions implemented by the State Council,It shall clarify the manifestation of collective land acquisition and approval and incorporate the land acquisition approval review decision into the scope of judicial review to protect the legitimate rights and interests of the land expropriated person.