Also our city private land nationalization

      Article tenth of the Constitution -- on the "city of the land belongs to the state of all"  

                           Guan Zhihui  

1949Years after the founding of new Chinese to1982Years before the implementation of China's constitution, city privately owned land although less and less, but still exists. The legitimacy of our country law also clearly recognize the city private ownership of land. For example1982Years3Month27DayState city construction bureau on strengthening the city (town) to inform real estate Chanquanchanji Management (("82The city of real word)77No.,2011Years1Month19DayFailure) clearly stipulates: "according to the provisions of the constitution spirit, our city housing there are several different ownership (state-owned property, collective property and private property)." "Real estate ownership certificate is proof of ownership of real estate, have the force of law."

1982The constitution stipulated in article tenth years after modified by: "city of the land belongs to the state. Land in the rural areas and the outskirts of the city, as stipulated by relevant laws other than those owned by the state, all belonging to the collective; house sites and private plots, remain mountain oneself, also belong to the collective."

This is our constitution first special provisions on the ownership of land, and for the first time defined the city land belongs to the state.[1]Then, in the city of private land, collective land is still widely exist, how to understand1982Years of constitutional "city of the land belongs to the state"?

First of all, the city's land belongs to the state is "reflect the actual situation of our country" ?

1982Years2Month27DayTo3Month16DayThe revision of the constitution, the second plenary session of the Committee held in the Great Hall of the people. At the meeting, the constitutional amendment Committee Secretariat previously issued "the draft amendments to the constitution of the people's Republic of China (Draft)" (hereinafter referred to as "shows that" draft for discussion). "Draft" provides that amendments to the constitution, the draft article tenth of the land ownership is as follows: "clear provisions of China's land ownership of tenth was added. This article city (not including the City suburb) of the land belongs to all countries, all land belongs to the state or collective ownership, and the provisions of 'no unit or individual is allowed to the sale and lease of land'. These Provisions are reflected the actual situation in our country. More specific rules to be formulated the law of the land, but the principles enshrined in the constitution, for the development of rural collective economic organization, is advantageous for the city construction."[2]

"Draft" said that city of the land belongs to all countries is the actual situation of our country and reflect, is not accurate. Because in the1982Constitutional change, our country city privately owned land, collective land still exists. In addition, many historical real estate land ownership issues are not properly solved, such as the escrow property (land) problem, the socialist transformation of private saving property (land) the legacy of the problem, during the "Cultural Revolution" occupy over private property (land) problem, the "Cultural Revolution" in the temple and its affiliated church occupied housing (of land) problems. So, how to stipulate the ownership of land, is1982A difficult year to amend the constitution in. This may reflect about land ownership speech from the constitutional process. For example: Hu Sheng1981Years2Month10On the morning ofAt the constitutional amendment Committee Secretariat tenth meeting clearly said: "some of the problems we had not, such as ownership, land on some issues, rural people's communes economy of Sino foreign joint venture."[3]

And if in the1982Years3Month12DayYang Xiufeng said that the group discussions,, land ownership is very complex, the situation is not the same everywhere. Now, the city land not announce that the state, not the.[4]

And as the revision committee of the third plenary meeting in the constitution of Rong Yiren1982Years4Month15DayThat meeting, I (Rong Yiren) is in favor of the state. But this is not the state, is a major issue, has not announced. Ownership disputes, to the national construction.[5]

From the above statement can know, the constitution is very understanding of the complex situation of our country's ownership of soil. So,1982Constitution not in large-scale, detailed land ownership under the condition of the general provisions of the city land belongs to the state, not to describe an already existing, the pure land ownership structure, but to carry on the reformation of the land ownership structure of the original, the reconstruction of China's city land system. This reconstruction includes two important aspects: first, for state owned land already belong to the city, such as the confiscation of the Kuomintang military and political organs and bureaucratic capital land confiscation of war criminals, traitors land were confirmed in the constitution, which means that the first detail, fair land ownership. Second, the nationalisation of city of private land, collective all land, church, temple and other non state owned land.

Visible, the Constitution stipulates that the tenth city of the land belongs to all countries more exact significance is future oriented goals, framework and principles of our city land ownership system. It is the future, but not now complete. It set a goal, but do not represent the complete target. Can not think of constitution promulgated, city land will certainly belong to the state.

City land owned by the state, must be in the law properly solve the non state owned land nationalization issue, the legal procedures, including the nationalization, the symbol, the original all the land in the loss of ownership after the land to protect the interests of the original land owner, whether of the original land enjoy the use right, use right, content type the term,, taxes and fees, whether to give compensation. Cannot emphasize unilaterally the city land owned by the state of the final results, but we must also solve the original land owner is to protect the interests of problems after the nationalization of land, both as two sides of a coin, can not be separated, otherwise the tenth article of the city land belongs to the country of all objectives can not be achieved.

Of course, the original land owner is to protect the interests of the problem after the nationalization of can not be stipulated in the Constitution in the land, but in the interpretation of article tenth of the constitution, shall be deemed to include respect for the original land all people's legal rights and set aside to give proper rights security system -- "more specific rules to be formulated the law of the land".

So, not like the natural sciences axiom to look at land constitution in article tenth of the city belongs to the provisions of the state and all, think it may behoove is the premise and basis of other legal legitimacy, and its own legitimacy is no proof, but must be from the principle, incomplete and unfinished to recognize its legitimacy and rationality.

In fact, the revision of the constitution at the time, it was noted that the draft constitution article tenth in the treatment of city city private land nationalization issue there are omissions. The Supreme People's court president Jiang Hua revision committee of the third plenary meeting in the Constitution1982Years4Month15DayThat focus on land issues: homestead, big city and small city housing reform the difference; and no housing reform, also has the distinction between the two. All of a sudden state, these differences all gone.[6]

The draft constitution in the discussion stage, Hunan Province Project Construction Committee Office Wu Minrui and from the city expansion point specified in the constitution draft article tenth omissions in the treatment of collective land nationalization issue. Wu Minrui said, the draft stipulates that the tenth "city of the land belongs to the state", the concept of "hard to explain, the execution is not easy". Reason.1) the existing city urban areas are constantly changing, such as Changsha City liberated area only6.7Square kilometers, is now53Square kilometers, expand the future may. The new development and urban and suburban be zigzag original, it is difficult to accurately divided clearly. (2) in the future there will be more and more towns and industrial and mining areas upgrade to the city. Such as1957Years ago in Hunan Province9A city, now15A city. The new city land formerly belonging to the collective, approved by the city is become for all belong to the state?[7]

The above two kinds of views have taken note of the draft constitution article tenth in the treatment of non state owned land nationalization problem when the fuzzy and omissions, is very valuable. Unfortunately, the article tenth reservation of legal gaps, has so far failed to get up and to improve the land legislation, eventually people will question the sights on the constitution.[8]

Land is the mother of wealth, land ownership changes is a major event, not vague. China will set up city land state-owned system, non state owned land nationalization is not one around past Kaner, must have perfect regulations, not only the nationalization of collective land in the future to have a legal basis, for the tenth article of the constitution is hidden behind the city of private land nationalisation but also make a reasonable explanation and description, especially the original land all people get what in the loss of land ownership and land use rights, the right to use the type, content, time limit, to ensure that the original land owner at least in the livelihood of the people the sense for the land benefit was not due to changes in the ownership and obvious impairment.

To achieve the above purpose, is meaningful to develop a separate "nationalization of land law". Note that, although China's laws and regulations can be implemented the nationalization of collective land through expropriation of collective land nationalization, but not limited to the way collection, such as Chongqing's "ticket" system[9], "to determine land ownership and use right several provisions"1995Revision)Fourteenth the provisions of the "general nationalization of collective land"[10]Etc..