The crux of China's land problem is not ownership

"Land development right" is a kind of beneficial exploration. The crux of the land problem does not lie in ownership, and the way out is not "privatization". It needs to go beyond the conceptual trap of public ownership and private ownership, and put forward, analyze and solve the land problem from the perspective of "public rights" and "private rights".

Land is the most important means of production in agriculture, and industrialization and urbanization are more related to land use (especially the conversion of agricultural land). In this paper, the concept of "land right" is used to cover all possible rights (rights) and power (power) on land. Legally speaking, the rights here is the private right, and the power is the public right.

In the realistic context, because of the literal meaning and the fixed mindset of asking "public and private" about everything, when it comes to "public power" and "private right", it is easy to be confused with the other categories of "public ownership" and "private ownership". Moreover, "public" always has a commendatory meaning, and public power and public ownership also seem to have a certain political or moral aura; in the mainstream ideology, public ownership, especially the public ownership of land, cannot be challenged. "private" is often derogatory, private rights and private ownership have been suppressed for a long time.

In recent years, with the continuous promotion of economic and social development and market-oriented reform, the concept of private rights and private ownership began to take root in the hearts of the people. However, because of the confusion in the theoretical concept and the complexity of the practical interest relationship, people often blindly blame the abuse of public power on "public ownership" and place the hope that private rights will not be infringed on "private ownership".

In fact, the categories of "public ownership" and "private ownership" are mainly related to economic reform, especially the reform of ownership, while "public rights" and "private rights" are more related to the reform of the administrative and judicial systems.

At present, the contradictions caused by the land issue arise one after another, and the voice of land system reform is rising day by day. Among them, there is a point of view that the crux of the land problem, especially the agricultural land problem, is attributed to ownership, is keen to talk about ownership reform, puts forward a prescription for "land privatization", and even thinks that the medicine can cure the disease.

On the other hand, people who are opposed to their views often overreact, as if they are facing an archenemy, or even to a higher plane of principle, and should persist in safeguarding their so-called "public ownership of land" which is sacred and inviolable. Unfortunately, both sides of the opposition suffer from the ideological paranoia syndrome of "surname public and private" and even "surname society and capitalist". Although this kind of controversy between public and private is very lively, it is a conversation between chickens and ducks, which is difficult to come to an end, ignoring the real problem.

Public right and private right, public law and private law

Public rights and private rights involve public law and private law. This pair of concepts originated from the continental law system, and scholars in the Anglo-American law system have not rejected this pair of concepts since the 20th century. Typical public law includes constitution, administrative law and criminal law, while typical private law includes civil law, commercial law and so on. The legal texts in the realistic form often have the factors of both public law and private law, with their own emphasis.

Public law provides norms and boundaries for the establishment and operation of public rights, while private law provides norms for the protection of private rights and the adjustment of interests. Public power has coercive power, while private right embodies autonomy of will.

"Private right" is often understood as the private interests of citizens, including personality rights, property rights, property rights, energy rights, creditor's rights, relatives' rights, inheritance rights, intangible property rights, membership rights and so on.

As for public power, it has been a fact since the emergence of civilized countries, no exception at home and abroad. As for its political basis, whether it is dictatorship, oligarchy or popular democracy, that is another issue.

The well-known story of "the wind can enter, the rain can enter, but the king cannot" involves the distinction between public power and private power, and there was no democratic politics at that time.

As for the public power in a democracy, it is transferred by citizens through legal procedures, and citizens transfer part of their rights to form public power to control society and maintain order. From the point of view of the right standard theory, on the one hand, right is the source of power. On the other hand, power is the guarantee of rights.

Specific to the same piece of land, there are both private rights and public rights. The exercise of private rights is subject to necessary restrictions. In the countries of Anglo-American legal system, it is often stipulated in the form of precedents or legislation that land ownership should be subordinated to the public interest and the abuse of rights is prohibited.

Private rights are not equal to private rights, and property rights are not limited to ownership.

Private rights are not equal to private rights, although private property rights are one of the most important private rights. The subject of private rights is not limited to individuals. Private rights are property rights and personal rights owned by citizens, enterprises, social organizations and even the state in independent and equal social and economic life. When the state does not appear as a public right to participate in civil activities (such as government procurement), it also involves private rights. All these private rights are independent, independent and communicate with each other equally. they constitute a private right society together, and the market economy is an integral part of the private right society.

According to the traditional concept of continental law system, ownership is the most complete and prominent one of all kinds of real rights, which is called "the most general master of things" in Roman law. However, since the middle of the 19th century, due to the increasing attention to social interests and social justice, there has been an improvement movement of "socialization of ownership", that is, to admit that it is necessary to restrict ownership for the sake of social interests. As stipulated in the Weimar Constitution of Germany, "ownership includes obligations, and the exercise of ownership should be conducive to the management of the state." Japan's 1989 basic Law on Land stipulates: "Land is an important asset for the people now and in the future, and it is an indispensable basis for all national activities."... It is a public interest, so public welfare should be given priority. "

With the development of market economy, a remarkable sign of the development and change of modern ownership system is the so-called trend of "from ownership to utilization". That is, the legal system has shifted from simply confirming the ownership of property to focusing more and more on the circulation and utilization of property. For example, the owner can transfer the right of possession, use and income of his property to others, and even make a limited assignment of the power of disposition (such as allowing the lessee to sublease). This situation is called "the separation of power and power of ownership".

As for the Anglo-American law system, there is no complete concept of ownership which strictly corresponds to the continental law system. As pointed out in the Oxford legal Guide: "it is best to understand property rights as not a single right, but a bundle of several different rights, some or even many of which can be transferred without losing ownership."

From the perspective of Chinese tradition, under the historical "permanent tenancy system", land ownership and land use rights are permanently separated, and land rights are divided into "land rights" and "land rights". The landlord has the land right, whose right is to collect rent from the tenant; the tenant farmer has the land right, and his right is to use the land permanently. Land rights can be inherited, leased or sold. The land right can be transferred separately and does not affect the land right of the tenancy. Among the people, there is also the "pawn right" of land and other real estate. It can be seen that China's traditional land ownership system, the form is also rich and diverse, is not a simple "feudal private ownership of land" can be summarized.

In short, the property right in private rights is not limited to the ownership of property. There is a close relationship and subtle difference between the concept of property right or "PropertyRights" and Ownership. Ownership can analyze a series of property rights that operate relatively independently, so that "original" or "ultimate" ownership is sometimes not so important.

Protection of private rights of public land

According to China's current laws and policies, land is divided into state-owned and collective ownership, urban land belongs to state-owned, rural land belongs to collective ownership, the latter mainly includes agricultural land and collective construction land. Whether state-owned or collective-owned, they all belong to "public land", and all kinds of land rights, such as the right to the use of state-owned land, the right of income, the right of disposal, and so on, can be stripped off, such as "the right to the use of state-owned land", "the right to contract and manage collective land" and so on. These rights belong to the category of private rights.

The land rights and interests of the parties (including all kinds of legal persons) are private rights like other property rights, regardless of whether the parties are individuals, "collectives", a private unit or a state-owned unit, regardless of whether such land rights and interests are called "ownership", "right to use", "lease", "mortgage", "above ground right", "easement", "permanent tenancy", or "contractual management right". No matter whether the land is "state-owned", "collectively owned" or "private" in the ultimate sense.

When state-owned enterprises (and even the government on behalf of the country) purchase in the market, they also have to be consensual and pay according to the price (of course, if the government forcibly expropriates and expropriates, it is a typical act of public power). As Marx said, "goods are born egalitarian", the money of "state-owned" is no more noble than that of "private", and if the products of state-owned enterprises are not marketable, they will lose money or even go bankrupt. The same should be true of state-owned enterprises, not to mention various "economic organizations of collective ownership".

Regardless of whether the land is public or private, private rights should be equally protected by public rights. It seems easy to understand that private rights on private land should be protected by public rights. in fact, as long as private rights on public land are clearly defined to specific natural persons and legal persons, there is no essential difference between private rights and private rights of private land. this private right should be equally protected by public rights. For example, although the land contracted by farmers in our country is collectively owned, that is, "public ownership", the "contracted management right", as a clearly defined and independent private right, should be protected by public rights, and can not be infringed upon by individuals, village collectives or the government at will.

Restrictions on public rights of private land

The state's restrictions on the planning, use and transfer of specific land belong to the public right, and land expropriation and expropriation belong to the public right. For example, Article 10 of the Chinese Constitution stipulates: "for the sake of public interest, the state may expropriate or expropriate land and give compensation in accordance with the provisions of the law." Article 13 of the Constitution stipulates: "the private property of citizens may be expropriated or requisitioned and compensated in accordance with the provisions of the law." The Fifth Amendment to the United States Constitution states that "private property shall not be expropriated for public purposes without fair compensation."

No matter state-owned land, collective land, or "private land" recognized by the law of some countries and regions, must be subject to the management of this kind of public power. The characteristics of public rights on agricultural land are more obvious, such as the state's strict restrictions on the conversion of agricultural land, especially the "strict protection" of "basic farmland".

Public land, including state-owned land, is always legally occupied by specific enterprises, institutions or individuals, and cannot be exempted from government land management because of its "public ownership" or "state-owned". Of course, the "right to the use of state-owned land" can not be recovered at will because of its "state-owned", and the same is true for collective land.

In fact, even in countries or regions where the land is privately owned, there are strict urban and rural planning and land use control, especially for agricultural land, which is the restriction of public rights on private rights, and has nothing to do with the public ownership and private ownership of the land itself. Farmland in Taiwan is privately owned, but farmers are not allowed to change their uses at will.

Of course, public power should abide by the principle of "prohibition without authorization by law". For example, there is no doubt about the legitimacy of the public right of land expropriation, which is based on public interests, including cultivated land protection, food security, meeting the needs of public land, urbanization and urban planning.

The clear definition of this public right is to specify under what circumstances and through what procedures to carry out land expropriation, especially for the identification of "public interest" is particularly important. In our country, the scope of land expropriation right is still too large, and the abuse of public power often occurs.

The conflict and balance between Public Rights and Private Rights

Public law and private law, public rights and private rights intersect and influence each other. Public rights should not only protect the free exercise of private rights from infringement, but also restrict private rights for the purpose of public interest, both of which are indispensable. At the same time, in addition to legislation (administrative law and other public law) to regulate public rights, private rights are also required to restrict public rights, both of which can not be neglected.

Jiang Ping once said: "now that private rights are increasingly awakening and expanding, public power still maintains a greater power of intervention and control, which will lead to an inevitable conflict between public power and private rights in a transitional society, and even sharp conflicts in a certain period of time." This is caused by objective laws. "

How to alleviate the conflict between public rights and private rights, especially how to limit public power to a certain range and ensure the inviolability of private rights is an important issue of modern legal significance. From a normative perspective, public rights and private rights should be in a state of dynamic balance. For this reason, it is necessary to clearly define every public right and private right related to land-- reflected in economics as clear property rights, standardize and strengthen the protection of public rights to private rights, and at the same time restrict public rights with legislation and use private rights to check and balance public rights.