论城市土地国家所有的所有权资格说

On the Theory of Ownership Qualification of the State Ownership of Urban Land

我国宪法第10条第1款规定的城市土地属于"国家所有",具有所有权说和所有权资格说两种可能解释方案。所有权资格说比学界普遍坚持的所有权说解释方案更具正当性和合理性。从解释学立场出发,该条款是强制性规范而非任意性规范,表征着国家的城市土地所有权资格的专属性特征。宪法的公法属性,决定了不能套用民法上的所有权资格理论解释宪法上的所有权资格概念。城市土地的国家所有权资格,性质上系宪法赋予国家对城市非国有土地实施国有化的公权力。国家对城市非国有土地实施国有化,受比例原则、正当程序原则和公平补偿原则等宪法原则的约束,类推适用宪法第10条第3款中征收补偿的规定。城市土地国家所有权资格说所遵循的中庸主义宪法解释方法论,对转型宪法的解释具有普遍的方法论意义。

The state ownership of urban land stipulated by the first paragraph of Article 10 of the Constitution has two possible explanations, the theory of ownership and the theory of ownership qualification. The theory of ownership qualification is more legitimate and reasonable than the theory of ownership which is generally insisted by the academic circle. From the standpoint of hermeneutics, this clause is a compulsory norm rather than a voluntary norm, reflecting the exclusive characteristic of state ownership qualification of urban land. The constitution＇ s public law nature determines that the concept of ownership qualification in the Constitution cannot be explained by the theory of ownership qualification in Civil Law. The state ownership qualification of the urban land is public power in nature that entitled to the state to nationalize the non-state- owned urban land. State＇s nationalization of the non-state-owned urban land is bounded by the constitutional principles, such as the proportion principle, the due process principle and fair compensation principle, and analogically applies to the provision of the third paragraph of Article 10 of the constitution. The constitutional interpretation methodology of neutralism that followed by the theory of state ownership of urban land qualification has universal methodology significance to the explanation of the transitional constitution.