我国集体土地征收制度的构建

Construction of the System of Expropriation of Collectively-owned Land in China

与国有土地上房屋征收制度相比,构建我国集体土地征收制度所面临的问题要复杂得多,阻力也大得多。现行集体土地征收是为实现和保障国家对建设用地的垄断建立起来的。要缩小征地范围,将征地限缩在公共利益需要的范围内,必须首先打破"先征收、再出让"的国家垄断建设用地的供地模式,建立公益性建设用地与经营性建设用地相分离的建设用地供应制度。现行的集体土地征收以集体土地公有为逻辑起点,以国家利益至上为中心,以公权力为主导,制度设计上反映了公权的至上与私权的虚化。要平衡土地征收中的公益与私益,必须打破失衡的公权与私权配置机制,明确被征收人及其在土地征收中的基本权利,并为权利的行使提供充分有效的救济与保障。

Compared with the system of expropriation of houses built on state-owned land, the system of expropriation of collectively-owned land is faced with much more complex problems and obstacles. The current system is established for the purpose of achieving and guaranteeing the state＇ s monopoly on construction land. To reduce the scope of land expropriation and establish a land expropriation sys- tem based on the public interest need, China must first revise the Urban Real Estate Administration Law, the Land Administration Law and other relevant laws to separate construction land for business purposes from the scope of land expropriation, thereby removing the institutional obstacle to the legis- lation on the expropriation of collectively-owned land. With respect to problems to be solved in the legislation on the expropriation of collectively-owned land, apart from those common to most coun- tries, the particularities of China＇ s collectively-owned land system and the complete domination of the current land expropriation system by public authorities have led to many special problems in the estab- lishment of the land expropriation system in China, including the qualification and scope of those whose land is to be expropriated, representatives of collectively-owned land proprietorship in land ex- propriation, basic rights of persons whose land is to be expropriated, reform of expropriation mode to change it from ＂plan-based expropriation in batches＂ to ＂project-based expropriation＂. Furthermore, in order to effectively restrain the expropriation power exercised by local governments, it is also neces- sary to establish the system of purchasing collectively-owned land by the state at negotiated price, as well as system of transfer of the right to the use of collectively-owned land and other supporting systems.