建设用地指标市场配置法律制度的立法构建

Legislative Construction of Legal System of Market Allocation of Construction Land

建设用地指标是土地开发权的表现形式,其能否合理配置事关国家经济发展和土地资源配置的社会经济效益。受传统计划经济体制影响,我国现行建设用地指标行政配置存在制度局限性,忽略了建设用地指标配置的空间均衡性,社会公众缺乏参与权和价值认同,政府权力寻租,在保护土地资源过程中产生了巨额的制度成本。市场配置具有弥补现行建设用地指标行政配置法律制度缺陷功能,其本质是在行政配置基础上通过私权机制对建设用地指标进行再配置。市场配置是建设用地指标配置的立法导向,通过建立建设用地指标市场交易的程序制度、指标交易的监督与救济制度,充分保障农民的生存权和发展权,通过公正的参与程序和制度规范,控制市场配置引发的建设用地指标投机风险。

Construction land index was the form of land development right. Whether it could be rationally allocated was related to the social and economic benefits of national economic development and land resource allocation. Influenced by the traditional planned economy system, the administrative allocation of the current construction land index in our country had institutional limitations. It ignored the spatial equilibrium of construction land index allocation. The public lacked participation and value identification. Rent- seeking existed in the government power. At the same time, huge amount of system cost was produced in the process of protecting land resources. The market allocation had the function of remedying the defects of the administrative allocation legal system of the current construction land index, whose essence was to reeonfigure the land use index on the basis of administrative allocation through the private rights mechanism. Market allocation was the legislative orientation in- dex configuration of the building. Through the establishment of construction land market transaction procedure system, supervision and relief sys- tem of index was trading to fully protect the fight to survival and development of farmers. Through fair participation procedures and regulation, construction land index, market allocation could control of market allocation caused by land speculation risk.