First, the status of collective construction land management
The use of collective construction land is stipulated in the Land Administration Law, Guarantee Law and Property Law. According to the provisions of Articles 60, 61 and 62 of the Land Management Law, collective construction land can be directly used only in three situations: First, farmers' collective economic organizations "set up enterprises in the form of land use rights or jointly set up enterprises with other units and individuals"; Second, it is used for "the construction of township public facilities and public welfare undertakings"; The third is "rural villagers building houses". The law prohibits the use of collective construction land other than the above three situations. Regarding the circulation of collective land, Article 63 of the Land Management Law has made mandatory provisions: "The land use right collectively owned by farmers shall not be sold, transferred or leased for non-agricultural construction; However, enterprises that meet the overall land use planning and obtain construction land according to law, except for the transfer of land use rights according to law due to bankruptcy, merger and other reasons. " In addition, the Guarantee Law and the Property Law stipulate the situation of collective construction land transfer: "The right to use the construction land of township enterprises shall not be mortgaged separately. If buildings such as factories of township enterprises are mortgaged, the right to use construction land within the occupied area shall be mortgaged together. " Except for the above two cases stipulated by law, collective construction land shall not be transferred. The reason why the legislature made such strict regulations is to protect China's precious land resources, especially cultivated land resources; On the other hand, it is also worried that a large number of collective construction land will disturb the normal land market order and affect the promotion of the paid use system.
However, in practice, the exploration of collective construction land circulation has never stopped. Since the establishment of the Ministry of Land and Resources, we have conscientiously implemented the spirit of the 15th National Congress and the Central Rural Work Conference, and attached great importance to the circulation of rural collective construction land. During the period of 1999 ~ 2000, pilot projects of collective construction land transfer were arranged in Wuhu, Suzhou and Huzhou. Subsequently, we concentrated on the transfer of rural collective construction land in Henan, Zhejiang, Shanghai, Jiangsu, Guangdong and other provinces and cities. In 20001and 2002, three symposiums on land system innovation with the theme of collective construction land circulation were held in Suzhou, Anyang and Huzhou, and the issues of collective construction land circulation management and system construction were deeply studied and summarized in theory and practice. The CPC Central Committee and the State Council also have policies and regulations on the transfer of collective construction land. In 2003, "Opinions of the Central the State Council on Doing a Good Job in Agriculture and Rural Areas" (Zhong Fa [2003] No.3) clearly stated: "We should reasonably solve the land use problem of enterprises entering the town and reduce the relocation cost of enterprises through the forms of collective construction land transfer, land replacement and payment of land transfer fees by stages." The Notice of the General Office of the State Council on Implementing the Opinions of the Central the State Council on Doing a Good Job in Agriculture and Rural Areas (Guo Ban Han [2003] 15) clearly stipulates that the Ministry of Land and Resources shall, jointly with the Legislative Affairs Office of the State Council and other relevant departments, formulate the Measures for the Management of Collective Construction Land Circulation. In 2004, the State Council's Decision on Deepening Reform and Strict Land Management (Guo Fa [2004] No.28) clearly stipulated that under the premise of conforming to the plan, farmers' collective construction land use rights in villages, market towns and towns can be transferred according to law.
In recent years, the CPC Central Committee and the State Council have successively issued policy documents on strict land management and strengthening land regulation and control, which have effectively promoted all regions and departments to implement the Scientific Outlook on Development and resolutely implement macro-control policies. However, there are still some problems in some places, such as violating the laws and policies of rural collective construction land management, converting agricultural land into construction land, and illegally approving construction land, which are spreading and rising. According to the satellite photo data over the years, it is estimated that more than 95% of the newly added construction land each year belongs to rural collective agricultural land. From 1997 to 2006, the average annual increase of villages in China was 9 10000 mu, accounting for 15% of the total new construction land. Moreover, there are some new problems in the management of rural collective construction land at present, and the subject of illegal land granting has spread from prefecture (city) level government to county, township government and even grass-roots village organizations.
Second, the practical exploration of collective construction land transfer
Theoretically, ownership should be equal, but the current law actually makes an unequal distinction between state-owned land and collective land: state-owned construction land can be transferred according to law, and collective construction land cannot be transferred except in special circumstances. This is actually the embodiment of the idea that "state is above everything" and "state is above everything" in the planned economy era in the land supply system. With the development of economy and society, the legal system that strictly restricts the circulation of collective construction land has obviously failed to meet the needs of the situation. Through the pilot work of collective construction land transfer carried out by the Ministry of Land and Resources, various localities have accumulated some experience in collective construction land transfer.
(A) the characteristics of collective construction land transfer
At present, the circulation of collective construction land presents the following characteristics:
(1) The circulation of collective construction land is widespread and has become an important part of social and economic activities. In recent years, with the development of rural social economy, especially the structural adjustment of township enterprises, a large number of collective construction land has been transferred. The survey shows that the circulation of collective construction land exists in a large number in both economically developed and underdeveloped areas, which plays a very important role in social and economic activities in various places. For example, in Zhejiang, Shanghai, Jiangsu, Guangdong and other provinces and cities, the circulation of collective construction land occurs in the process of merger, restructuring, reorganization and joint venture of township enterprises.
(2) There are various forms of collective construction land transfer. At present, there are different forms of collective construction land transfer, which can be divided into the following ways: First, the transfer of collective construction land use rights. Collective land owners transfer the right to use collective construction land to land users for a certain period of time, and collect land income from users at one time. Land users obtain the transferred collective construction land use right, which is similar to the transfer of state-owned land use right. This method has been unanimously supported by land users because it can obtain long-term stable land use rights and facilitate financing. The second is the lease of the right to use collective construction land. The difference between this method and the first method is that the land revenue is not collected at one time, but in batches in the form of regular rent payment. This method is widely used in various pilot projects, mainly because land owners want to obtain long-term and stable land income and avoid the land income problem that is difficult to solve by one-time transfer of shares. Third, the right to use collective construction land is invested in shares or at a fixed price. Collective land owners will price the right to use collective construction land within a certain period of time, invest in enterprises in the form of capital contribution or shares, and pay dividends according to the capital contribution or shares. Land users will obtain the right to use collective construction land at a fixed price. This method is very common in the reform of township enterprises. On the one hand, it solves the problem that land users want to obtain long-term land use rights for financing, on the other hand, it also ensures that land owners can obtain more stable land income. The fourth is the replacement of land use rights. For example, Kunshan City, Jiangsu Province, while adopting the above-mentioned methods, also explored the way of land use right replacement, that is, "the land reclaimed by the original enterprise construction land can be exchanged with the new construction land in the same area". Although this method is still in the primary stage of theory, it is also reasonable, which undoubtedly relieves the pressure of new construction land on land use indicators and is worth popularizing.
(3) The circulation subject is diversified and the land economic relationship is complex. In line with the diversification of investment subjects in economic development, the subjects participating in the circulation of collective construction land also show a diversified development trend. The transferor and lessor include land owners such as township (town), village and group collective economic organizations, government and villagers' autonomous organizations such as township governments and villagers' committees, and land users such as township (town) and village enterprises and individuals. The transferee has both internal members of collective economic organizations and other collective economic organizations and other economic entities.
(4) There are various types of land for circulation, but most of them are for production and operation. The land types involved in collective construction land transfer include farmers' residential land, industrial production land and commercial land. In some cases, there are many types of land for real estate development, but mainly for production and operation.
(5) The circulation quantity is directly proportional to the level of economic development. The circulation of collective construction land is directly affected by social and economic development. In economically underdeveloped areas, the circulation of collective construction land is scattered and spontaneous, with small scale and few forms, mainly because farmers rent houses and set up stalls in bazaars. In areas with moderate economic development, except for renting houses, most of the collective construction land is transformed and reorganized by township enterprises, and factories and production sites are used to promote land circulation; In economically developed areas, the circulation of collective construction land has evolved into a large-scale and multi-form operation of rural collective economic organizations with land as assets, mainly the direct transfer and lease of collective construction land use rights.
(B) the main management model of the pilot area of collective construction land transfer
According to the planning scope of urban construction land determined by the overall land use planning, each pilot area has formulated the transfer and management policies respectively, which can be roughly divided into three management modes.
(1) the mode of "transferring power to benefit". The mode of "transferring rights to benefit" refers to the management mode that when the collective construction land is transferred, the ownership of the collective construction land is turned into state-owned, and the state-owned land is transferred or leased, and most of the land income collected belongs to the collective economic organizations, that is, the same property rights and unified market are implemented. Ningbo, Wenzhou and Changzhou basically adopt this model.
(2) The mode of "safeguarding rights and sharing benefits". The mode of "protecting rights and sharing benefits" refers to the management mode of transferring, leasing, shareholding and joint venture of collective land use rights within a certain period, imitating the paid use of state-owned land, and leaving most of the land proceeds to collective economic organizations. Shanghai Jiading, Anhui Wuhu, Guangdong and other provinces and cities have adopted this approach. The theory holds that collective land ownership and state land ownership are equal in civil legal status, and the power of ownership is sufficient and should be treated equally. Therefore, under the premise of not violating the overall land use planning and urban and rural construction planning and not impacting the basic farmland protection areas, the collective construction land use right can directly enter the market without changing the land ownership. After these lands enter the market, the nature of collective ownership remains unchanged, and the land benefits obtained by the collective can be distributed between the state and the collective, so it is called "protection rights sharing".
(3) the mode of different treatment inside and outside the planning area. This model means that the collective construction land in the urban planning area and the town planning area is transferred in the way of "transferring power and making profits", while the collective construction land outside the planning area is transferred in the way of "safeguarding rights and making profits". Hangzhou, Huzhou and other cities have adopted this model.
Three. Main contents of document 7 1
Document 7 1 reiterated the provisions of the existing laws and policies on rural collective construction land, requiring strict implementation.
(1) Strictly implement the land use control system. In some places, illegal conversion of agricultural land into construction land and illegal approval of construction land are mainly due to the lack of strict implementation of the land use control system determined by the Land Administration Law. To this end, document 7 1 first reiterated the need to strictly implement the land use control system, which is the core of the strictest land management system. Units and individuals using land must use the land in strict accordance with the purposes determined in the overall land use planning. Land use planning and management is a state power, and it is illegal to change land use without approval in violation of planning. Any experiment and exploration involving the land management system shall not violate the national land use control system.
(two) strictly regulate the construction land collectively owned by farmers. The establishment of township enterprises, township (town) village public facilities and public welfare undertakings, rural villagers' houses, can use the land collectively owned by farmers, and perform the examination and approval procedures according to law. Rural homestead can only be allocated to villagers in the village, and urban residents are not allowed to buy homestead, farmers' houses or "small property houses" in rural areas.
(3) Strictly control the scale of rural collective construction land. It is strictly forbidden to expand the scale of collective construction land without authorization in various names, and it is clearly restricted to carry out pilot projects on the transfer of collective construction land use rights, the increase or decrease of land consolidation and the increase or decrease of urban and rural construction land.
(4) Prohibit and severely investigate and punish the illegal acts of "collecting land by rent" into agricultural land. "Collecting land by rent" is the main form of illegal land use in rural areas. In order to curb this illegal trend, Document No.2000 was issued on 19991February 1 1. 7 1 Demands that the behavior of "collecting land by rent" be severely investigated, and it is clear that if the staff of state organs approve the construction of "collecting land by rent", they shall be investigated for their legal responsibility for illegally granting land; Units and individuals without authorization through the "rent" covers an area of construction, should be held accountable for their illegal land occupation.
(5) Strict land law enforcement supervision. The Ministry of Land and Resources shall, jointly with the departments of development, reform, supervision, agriculture and construction, strictly enforce land law enforcement and supervision in accordance with land management laws, regulations and relevant provisions, and resolutely stop illegal acts of indiscriminate occupation of agricultural land by non-agricultural construction.
In addition, document 7 1 also puts forward a new measure of strictly managing rural collective construction land, that is, strengthening departmental linkage. This is an important measure to effectively stop the illegal behavior of rural land. For this reason, document 7 1 emphasizes the need to strengthen coordination among departments, and requires all relevant departments to strictly limit rural collective construction projects that have not obtained legal land use procedures in terms of project approval, planning permission, property right registration, loan issuance, and enterprise registration. For construction projects that have not obtained legal land use procedures, the development and reform department shall not go through the formalities of project examination and approval, the planning department shall not go through the formalities of construction planning permission, the construction department shall not issue construction permits, the electric power and municipal departments shall not have electricity, water and ventilation, the land and resources management department shall not accept land registration applications, the real estate department shall not go through the formalities of housing ownership registration, and financial institutions shall not issue loans. Failing to go through the examination and approval procedures for the conversion of agricultural land according to law and occupying agricultural land to set up enterprises, the industrial and commercial departments shall not register. At the same time, the State Land Supervision Bureau stationed in local areas should also strengthen supervision over the implementation of the target responsibility system for farmland protection of local governments and strengthen supervision over the implementation of the land law enforcement responsibility system of local governments.
In order to further safeguard the legitimate rights and interests of farmers' land, the Ministry of Land and Resources will actively study the long-term mechanism, and will, in conjunction with relevant departments, thoroughly study and improve the policies and measures for the management and circulation of collective construction land such as township enterprises and farmers' houses under the premise of overall land use planning and strengthening use control. The Ministry of Finance will work with relevant departments to study ways to use urban and rural land income as a whole.
Four, the collective construction land transfer pilot work should pay attention to the problems.
Compared with agricultural land, collective construction land has great comparative benefits. If the conditions and scope of collective construction land circulation are not restricted, it will undoubtedly lead to the artificial expansion of collective construction land and the reduction of agricultural land. Therefore, the pilot areas should pay attention to the following issues in the circulation process:
(1) Cultivated land should be strictly protected. The transfer must be the stock of collective construction land, and it is not allowed to convert agricultural land into construction land, let alone directly transfer agricultural land.
(2) Abide by the plan and scheme. Conforming to the requirements of the overall land use planning and the annual land use plan is a necessary condition for the transfer of the right to use the construction land collectively owned by farmers. In urban and town planning areas, it should also conform to urban planning and village construction planning. Those that do not conform to the plan shall not be transferred.
(3) It is necessary to strictly limit the circulation and use of collective construction land. If the transfer is not allowed for commercial real estate development.
(4) Pay attention to protecting farmers' interests. In order to protect the interests of farmers, we should pay attention to standardizing the circulation procedures and the distribution of circulation income.
(5) Strengthen the management of collective construction land circulation. Land and resources management departments should strengthen the guidance, management, supervision and service of collective construction land use right transfer, and illegal transfer is strictly prohibited.