集体经营性建设用地入市的价值取向与制度安排

The Value Orientation of and Institutional Arrangements for the Market Entry System of Rural Collectively-Owned Commercial Construction Land

集体经营性建设用地入市制度的价值并非复原权能而是补偿利益。复原权能系以此复原作为民法上财产所有权的集体土地所有权被剥离的固有权能,以充分实现集体和集体成员的个体利益。补偿利益系以此补偿集体土地所有权因社会公共利益和集体共同利益需要而受限的利益,即以规划特许的方式给予集体土地所有者一定经济特权利益,以促使集体土地所有权更好地担当其所承载的使命,同时也适当兼顾集体成员的个体利益。因此,国家应当根据集体土地所有权承载的社会公共利益和集体共同利益使命的强弱不同,向集体土地所有者征收不同比例的土地增值收益调节金,并限制集体经营性建设用地入市收益的支出。

The market entry of collectively-owned commercial construction land has been an important phenomenon of economic reform in China in the past 20 years.The 2019 Amendment to the Land Administration Law makes a breakthrough mainly in the newly added Article 63 on the market entry of collectively-owned commercial construction land,but still contains no clear and specific provisions on some key issues involved.The most influential proposition on these issues can be summarized as the“rights restoration theory”.This article proposes and argues for an“interest compensation theory”on the basis of a debate with the“rights restoration theory”,and explains how these two theories can be tested and applied in practice.The“rights restoration theory”holds that,firstly,the essential attribute of collective land ownership is private ownership,and,secondly,collective land ownership should be completely equal with state land ownership.Based on the above propositions,this theory further holds that the value of the market system of collectively-owned commercial construction land mainly lies in its restoration of the inherent right of collective land ownership that had been deprived and suppressed in the past,and in its support of the full release of the economic benefits carried by the restored collective land ownership.This author holds that,firstly,the fundamental purpose of collective land ownership is to realize public interests and the common interests of collectives,as a result of which it carries the basic function of public administration.Therefore,the essential attribute of collective land ownership lies in its public nature,but certain private interests should also be taken into consideration.Secondly,there is a fundamental difference in content between state land ownership and collective land ownership in China.The two are actually not on the same level:state land ownership is absolute,complete,and relatively rich in content,while collective land ownership is subject to many limitations,with its final fate determined by the state,and therefore lacks absoluteness and integrity.Based on the above analysis,this paper further holds that the value of the market entry system of collectively-owned commercial construction land lies not in the restoration of rights,but in the compensation of interests,which is the compensation of the interests of the collective land ownership subject to limitation for the public interest and the collective common interest,that is to say,to give the collective land owners certain economic privileges in the form of planning concessions to encourage them to better realize the mission borne by collective land ownership,and at the same time give due consideration to the private interests of members of collectives.Therefore,the state should,according to the strength of the public interest and collective common interest missions carried by collective land ownership,levy different proportions of land value-added income adjustment funds from collective land owners and limit the expenditure from the market income from collectively-owned commercial construction land.