Study On The Transfer Of The Right To Use The Collectively Operated Construction Land

The transfer of the right to use the collectively operated construction land was confirmed in the newly adopted amendment to the Land Management Law on August26,2019.The newly amended Land Management Law deleted the provisions of Article 43 of the Land Management Law in 2004 that the land used in the project construction in China must be state-owned and applied through the legal procedures.Article 63 was also amended that if the construction land for rural collective operation is recognized as industrial and commercial use by the administrative organ in the overall land use planning and urban and rural planning,it can be transferred freely in the land market.The amendment of this article makes the scope of land market trading object no longer limited to state-owned land,and the right to use collectively operated construction land becomes the trading object of the land market,which leads to the diversification of trading object and the new type of operation mechanism of the land market.However,although the collectively operated construction land can be exempted from the expropriation procedure to be transferred in the market,there is no clear legal definition and complete legal content in the legal system level.There is also a lack of mature land transfer system and income distribution mechanism.Therefore,the promulgation of the amendment to the Land Management Law puts forward new requirements for the transfer of the right to use the collectively operated construction land into the market.This paper studies the current situation of land transfer in China and puts forward some suggestions to improve the existing transfer system with the aim of standardizing the order of land transaction market.This paper will discuss this from the following four parts:In the first part,on the basis of the background and the domestic research status of the right to the use of collectively operated construction land,the author makes a conceptual distinction between the right to the use of collectively operated construction land and the right to the use of collective construction land and clarifies the scope of its access to the market from the conceptual level.In the second part,starting from the practical experience of the pilot areas,the author elaborates the practical obstacles in the transfer of the right to use the collectively operated construction land from aspects of property rights and distribution.The obstacles of property rights are mainly analyzed from three aspects:subject,object and content.The obstacles of distribution are mainly studied from four aspects: subject,method,procedure and dispute resolution.The obstacles lead to the consideration of the transfer system of the right to use the collectively operated construction land,which provides the following countermeasures.In the third part,the corresponding system construction is carried out according to the property right obstacles of the transfer of the right to use the collective operating construction land,mainly from four aspects: the private right system,the transfer subject,the object scope and the planning system.This part not only constructs the private right system of the right to use the collectively operated construction land from the theoretical level,but also clarifies the subject and object scope of the transfer system and the supporting planning system from the social policy level.In the fourth part,according to the distribution obstacles of the transfer of the right to use the collectively operated construction land,the corresponding income distribution mechanism should be set up mainly from the four aspects: distribution subject,distribution method,distribution procedure and dispute resolution mechanism.In this part,the main body of income distribution is defined clearly.The implementation mode and procedure of income distribution are studied to improve the dispute resolution mechanism and to ensure the steady progress of income distribution.