On the right on the legal nature of land development

Keywords: land Development rights / public power and private rights / duality / Economic Law Rights

Summary: As China's socialist market economy system and continuous improvement, rapid progress of urbanization, due to land use changes, increased land use intensity as a huge Economic benefits arising from the rights of ownership and distribution of benefits must be with the Land Development power system to be addressed. the legal nature of land Development rights issues directly related to the land Development rights legal system design, which is a theoretical issue can not be avoided, but also a very important practical issue. the traditional dichotomy of public power and private rights qualitative methods to land Development rights, has been shown unable to overcome the limitations. China's land development rights with duality, with both a private right of property rights, but also has a strong state intervention in color, it should be characterized as a sense of Economic Law rights.



Land development rights, land use change for the different nature of rights, such as from agricultural land to change land use for urban construction. The creation of land development rights, other property rights or ownership of all land is now scheduled to use the value of the normal limit, that the scope of land ownership in order to obtain the now legally acquired rights is limited. As for the types of land use change since the decision belongs to the right to development [1] 1947 UK <<Town and Country Planning Act>> the first time the establishment of land development rights system, 1968 and 1974, the United States to state legislatures in the form of land development rights were established (TDR acquisition and land development rights (PDR system, published in France in 1975 <<land policy reform Law>> to "building rights" The solution to raise the degree of intensive land use arising from land development rights. As China's socialist market economy system and continuous improvement, rapid progress of urbanization, due to land use change, land use intensity as the increase resulting from huge vested Economic interests, rights and interests of distribution, land development rights with the system must be addressed. the legal nature of land development rights issues directly related to the design of the legal system of land development rights, is a theoretical issue can not be avoided, but also a very important practical problems, which explore the nature of land development rights Law makes sense.

First, the division of public power and private rights and limitations of the meaning of

(A division of public power and private rights of the significance of

In Law, there are public rights and private rights distinction. The formulation of public power and private rights, the first from the Roman jurist Ulpian on the division of public and private law. Public power is the public's rights, or protection public interest powers, or between private rights of citizens between the private parties involved in private too, selfishness, desires and other aspects of the rights of such public-private division of the right has been Western politicians, jurists adopted. the theoretical circle in a few Ten years ago, also had the right to private rights of public argument, then very little. But the reform and opening up, with the establishment of socialist market economy and the continuous development of jurisprudence on the division of public power and private rights and discussed very warm.

Distinction between public power and private rights is about the nature of the right to determine, from the perspective of what law, what kind of remedies, as well as the nature of the case by the trial court or tribunal, for which procedures. Public rights the meaning of division with private rights, but also from a legal concept level analysis. the concept of public power that the country should be above the top of society and people, should have absolute priority over national interests, the interests of all individuals, all laws and regulations are a manifestation of national will , all the rights, powers are derived from the national authority. all areas, all relations should be dominated by the state executive power, all acts of individuals are required to get state permission, the state has the absolute unlimited power. dominated by the concept of public power under state Administration, stressed that the Government of the society, the people of the "management", a "controlled Administration." notion that private rights, the state exists, the purpose is to protect the individual's private rights, the sanctity of private rights of individuals, not based on social and public interests and basis for the purpose of legal procedures, not deprivation and restriction. authority of the State's activities are mainly Political life, Civil life, the principle of autonomy of private law practice areas, from legal equality between the parties negotiate to determine their The rights and obligations, the state intervention in principle, only in the event of disputes can not be settled through negotiations only when the ruling by the state judiciary to come forward. All laws and regulations are a manifestation of the will of the people, the country's power comes from the people's mandate. The concept of private rights under the sway of the state Administration, emphasis on the community, the people of the "service", a "service Administration." To further understand the distinction between public power and private rights meaning, it is necessary and the public from the right of private rights on the area corresponding to the other to grasp. public, private and public power is, private rights corresponding to the pair of categories. general understanding of the law on rights that the public power, private law rights that private rights because of social life the nature of the relationship between two different ─ ─ between equal entities, without the participation of national public relations and unequal power between the main body, the need power to participate in national public relations, the question arose as to adjust the different means of private law, public law [2]

In a market economy, public, private difference is an objective reality, it is also necessary to make the proper distinction. The substance of private law is to protect the legitimate rights of the private, public law is the proper use of the real state of public power (including legislative the executive power, judicial power. to build a socialist market economy and legal system, which requires both private law, but also a public law. to establish a socialist market economy, legal system, we must recognize public, private and correctly classified them the difference between the boundaries [3] Similarly, the establishment of a socialist market economy and legal system must also be correctly classified public power and private rights.

(B division of public power and private rights limitations

Division of public power and private rights has a positive meaning, but with the Economic and social development also showed some limitations in the era of liberal capitalism, commodity production and exchange is essentially a matter of private autonomy, the state or government basically does not intervention, so the distinction between public power and private rights in the era of liberal capitalism is very prominent role, however, with the capitalist market economy continues to develop, free to the monopoly stage of capitalist development, the traditional field of private law or by the state have government intervention, public and private law have become blurred, completely free of private rights by the State or government intervention and restrictions of modern social and economic relations between the new changes, making the legal form of new changes, the distinction between public power and private rights to show significant limitations. The process of development in modern society to a "private law, public law, private law" of the phenomenon. "Tradition of public law, private law also applies to certain economic sectors, a situation of economic relations, not only in public, private division of the already more general of the United States, Britain, and in public law, private law is very strict division of France, Germany, resulting in a new legal form - the Economic Law of capitalism. "" Economic Law of modern social and public character of the community as a whole interests and individual interests of the proper coordination, it is public, private combination of the two legal factors, the results and performance. "[4]

In China, with the establishment of socialist market economy and growing urbanization, fast forward, due to changes in land use, land use intensity as the improvement of the enormous economic benefits arising from the rights of ownership and distribution of benefits is increasingly become a social focus of urbanization, industrialization, land-use issues are involved, reflecting the diversity of land use interests. This wide range of benefits that modern land than the land question more complex before the modern basis for all land issues, everyone from the land of all social interests and private interests to be launched on the opposition and adaptation, so the face of such diverse contemporary land issues, such as just rely on since the late nineteenth century with the public welfare against abuse of rights theory, or with ten eight, the nineteenth century the concept of absolute ownership of land responded, obviously not without practical suitability. [5] The new interest in the land legal relationship will inevitably lead to the emergence of the new changes, only the traditional public rights and private rights dichotomy of qualitative land development rights, has been shown unable to overcome the limitations.

Second, foreign and qualitative evaluation of land development rights

Land development rights from the foreign point of view of the law, some state land development vested in the Government or the state, and some state owned land development rights of land owners. Foreign ownership of land development rights on the different requirements that the land development rights can either be designed as a public authority to regulate, but also can be designed as a private right to regulate it? Answer this question, must contact a State land development rights system design values, purpose and content to answer.

(A characterization and evaluation of public power

After World War II, the British Population based on national reconstruction and the increased pressure to enhance urban planning and land use management, research and legal system construction .1942 published the <<Aswat report>> (UthwattReport. < <Aswat report>> many of the findings and recommendations, particularly with regard to allocation of land development rights proposal, the British land acquisition system reform played a key role in .1947 in the UK <<Town and Country Planning Act>> provides that all private future development rights from land owned by the State, by the state monopoly, the "nationalization of land development rights." [6] French law promulgated in 1975, a land development rights legal limit density limit, or "building the right." more than the legal limit density limit "building rights" belong to the local government, building developers if you want more than density upper limit for construction, the density required to limit the burden on the government to pay more than money, that is, the right to buy more than standard construction.

UK land development rights system design values ​​concerned about "fairness", which aims to establish a limited control of land development and the mechanisms of this land the right to development of design ideas in fact constitute the British way of land use control, reflecting the UK land development rights in the creation of a strong nationalistic, state or national exclusive representation of the national land development rights the only subjects of rights, which highlights the land development rights of state and government of public authority property. [7]

Government police power, also known as "police power" is representative of public authority the Government the right of the police is when an individual's rights and the promotion and maintenance of public health, safety, morals and general welfare of the conflict, allowed the state to intervene in individual the right to police the right to set aims to protect public health, public morality, public security and social welfare. in terms of land development and utilization, in order to provide a good environment to residents, maintain and improve the ecological environment, preserve historical and cultural space wide open and monuments and other public purposes, the state of the exercise of police power to regulate land development and utilization control. [8] Although the land use planning or land use controls and other government police power can also lead to the production of material interests, but the land use planning and land use control and other government police power itself is not property rights, does not have paid sex and inalienable, and land development rights is a property right, with the property and paid sex and can alienate, which highlights the right of land development and land use planning, land use controls and other government police power to distinguish the important features.

In view of the police power of the public welfare and administrative control of land use planning or land use control, planning or control object for being the loss of land without compensation. This not only reduces government control of land development and the efficiency of utilization behavior, but more importantly, reduce the land use rights for land development and the enthusiasm of private rights and protection of land is not conducive to the coordinated development of national economy, the UK implementation of the land development rights After nationalization, although the land development slowed, to some extent, curbed the peri-urban areas of agricultural land to urban encroachment, but the sale of the land market almost to a standstill, an urgent need to use the land developers had access to land through the black market. Land nationalization of development rights to the land market decline, hindering the normal use of land, affecting the economic development of French law, more than the statutory maximum density limit of the "building rights" to the local government. This provides for early, due to the level of maximum floor area ratio limit too low, to a large extent affected the enthusiasm of private land, and later the French government to density (floor area ratio limit again to adjust gradually to relax the above-mentioned note, the development of land classified as public power and the right to carry out system design, effect is not very satisfactory.

(Two qualitative and evaluation of private rights

Since the 1960s, the United States on the basis of the zoning regulation, modeled on British practice, the creation of a system of land development rights with the British system of different land development rights, the United States the right to land development system runs in two forms, namely, land development rights (Transfer of Development Right, referred to as the right to development and land acquisition of TDR (Purchase of Development of Right, referred to as PDR. Both the design of the system of land development rights despite some differences, but all the provisions of land development rights to the Land owners. land development rights owned by the original owner of all land, whether by the government acquisition of land development rights, or transfer to other market players, the original land owners receive an income in the same time, you can still continue to use the original land.

Moreover, the U.S. private rights of land development rights can also be certified through the case in WestMontgomery Country CitizensAssoc.v. Maryland-National Capital Park and Planning Commis-sion case, the court believes that is a bunch of land ownership rights, It includes land to develop and improve the land utilization right. [9]

Half of the twentieth century, Ye Meiguo rapid economic development, urbanization has accelerated. Population (including a large number of immigrants increased, prompting the city overwhelmed rapid outward expansion of urban expansion outward, taking up a lot of agricultural land, to the peri-urban land ( especially arable land) to protect the enormous pressure as early in the twentieth century, the thirties, the U.S. government to learn the practice of the German land use controls, strengthen the government's land use management to the 1960s, the U.S. government ( mainly state and local governments come to realize that land use control system to reduce the loss of agricultural land, control urban development encroachment on agricultural land in the suburbs is not obvious. land use control system can not be fully effective is an important reason is the lack of incentives Government According to the plan requires owners of agricultural land for development of land does not, or not allowed to be sold to real estate developers, but did not give the owner of agricultural land to economic compensation that the owner of agricultural land, government land use control system not only They carry a unfair burden, and violation of their private property, more and more agricultural land owners for land use control system dissatisfaction with the government. the late 1960s, the U.S. government in the implementation of land use control system based on the follow British practice, set the land development rights, the establishment of land development rights system.

U.S. land development rights system design values ​​focus on "efficiency", which aims to establish a land conservation incentives would be classified as a land development rights of private property rights, land ownership reflects the protection of the interests of the people of the Land Development demands of the United States the right to transfer land development (TDR acquisition and land development rights (PDR two systems, the provisions of land development rights are owned by the original land owners in the land development rights owned by the original land owners under the conditions of the system, regardless of land development acquisition of rights by the government, or the transfer of development rights to land land developer, the original land owner can get a substantial amount of revenue that would only protect the land, the mobilization of land for land protection, the enthusiasm of all U.S. land development rights system is implemented more than 40 years, throughout the U.S. [10] By 2008, the United States, 30 states established a system of land development rights, protected agricultural land, nature reserves and open space up to 30 million acres. [ 11] land development rights from land development rights acquisition system and the implementation of the system, not only the quality of suburban farmland protection played a role, but as time goes by, the U.S. system of land development rights to protect the contents from the original farmland in suburban areas , extended to the environment and historic buildings, landmarks such as the U.S. system of land development rights the successful Experience of other countries or regions by reference.

Third, land development rights with the duality

(A land development rights as a property with a private right of

UK land development rights owned by the state of system design and the French more than the statutory maximum density limit of the "building rights" to the local government system design, land development rights are as an independent right, separate from land ownership in other words , as a land development rights to land ownership and disposition of property rights divided the United States the right to development of land owned by the original land owners of the institutional arrangements, land development rights is defined as all land owners, but with land ownership split action, is also a property right. Thus, the United Kingdom, France and the U.S. are land development rights from land ownership as a separate and independent property rights. This is consistent with the general development and changes of land rights laws.

Land as a real human life, from start to form a set of Roman law on land ownership and use of the legal system. With the evolution of human society, land ownership theory has been or is undergoing a series of changes. "Ownership is not a the same concept, but in particular in relation to controversial changes in the legal process. "[12] Legal history shows that the most basic and simple form of ownership, personal ownership, that is, personal property, exclusive of its direct control rights . Ownership with absolute, exclusive, comprehensive, precisely for this individual in terms of ownership in a quiescent state when all the things there are his property, the ownership of the property will be changed, its power and features have not longer be absolute, exclusive and comprehensive when everyone becomes complex, this will become a total right to individual ownership. legal system is produced, ownership and a new mutation occurred, the creation of a corporate ownership. the original personal ownership into the election, the right to monitor corporate management and the right of return according to data obtained [13] When a building is divided into several parts, the distinction between ownership of the building has had the local development and utilization of mineral resources under the people are paying attention , the mining rights and land ownership separation, resulting in a mining rights when people use the land are not limited to land surface, they have the space right of ownership and use of space. In short, individual ownership, joint ownership, corporate ownership, building distinction between ownership and mining rights, space rights of ownership and use of space, are developed in different historical periods of ownership changes in the results. the general rules of development and changes of ownership of that land rights must be set up with the constant development of social and economic change. pay more attention to modern property law the right to use the status and role, from the development and changes in ownership of the general regulation of land development rights as a property rights separate from land ownership, land rights, development and change in line with the general law can be said that the Land Development the right is a right of private property rights.

The difference is, the United Kingdom, France-based land development "prices attributed to" the concept of land development rights reverted to the state or local government, private land ownership is no longer included in future land development rights for land development or improve the private building floor area ratio of land required to purchase development rights to the government, the United States to allow private land owners to be limited by a certain plan of development (not the actual development and use of development rights) to sell, transfer.

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(B land development rights as the relationship between state intervention in land use, but also has the nature of public authority

Land development rights and the law gives the government the use of planning and land use control of government have a right to contact the police based on the presence of government police power, land ownership is restricted to the formation of the separation of land ownership with land development rights to land development right up in the whole system of land rights and land use process to determine development, land development rights everywhere, the government police the right to display the "shadow." Just as some scholars have said: "Land development rights arising from the use of state land use control implementation, planning control, the need for public intervention in the foreign countries has become the city's planning control of land development, zoning control system is an important tool. "[14] In this sense, land development rights with the police power of color, therefore, land different from ordinary property rights, development rights, common property has a considerable "freedom" and land development rights subject to the object the use of land development has obvious "restrictive." can be said that land development rights is the nature of public authority of government police power.

Fourth, China's land development rights should be defined as the right sense of Economic Law

With a dual view of land development rights, land development rights in China should be characterized as a sense of Economic Law on the rights, which is not only feasible, but also to accurately reflect the essential characteristics of land development rights, facilitate the proper design of land development rights system content, correct use of principles and tools of Economic Law, appropriate use of economic law remedies to ensure the development of China's land tenure system of implementation.

(An economic law legal system has become one of the basic sectors

From feasibility point of view, economic law legal system has become one of the basic departments Legal department of the division is determined by the socio-economic conditions, rather than people's subjective imagination. On the division of China's legal system, academic and official basically the same opinion. academic view is that "the fundamental law under the Constitution, there are six legal categories: administrative law, Criminal law, Civil law, economic law, social law and litigation and arbitration law." [15] official First seen in the views May 26, 1999 <<People's Daily>> published in the NPC Law Committee, Wang Weicheng speech. Wang Weicheng said in the speech: "China's legal system is divided into seven more appropriate legal departments, namely: the constitution and the constitution-related laws, Civil and commercial law, administrative law, economic law, social law, Criminal law, litigation and non-litigation procedural law. "[16] March 9, 2001, Chairman Li Peng on behalf of the NPC Standing Committee work report said:" China's socialist legal system is divided into seven legal departments, namely, the Constitution and the Constitution-related laws, Civil and commercial law , administrative law, economic law, social law, Criminal law, litigation and non-litigation procedural law. "[17] 2004 Wu Bangguo, chairman of the national legislative conference reaffirmed the division of China's legal system," we are building socialism with Chinese characteristics ism legal system is based on the Constitution as commander in chief, the law of the trunk, including administrative regulations, local regulations, autonomous regulations and separate regulations and other normative documents, including, by seven legal department, composed of three levels of harmonization of legal norms as a whole. "[18] National People's Congress Law Committee, State Council Legislative Affairs Office prepared <<People's Republic of law>> and <<legal book>> in accordance with the" seven laws style, "write," economic law "is one of the class. It is obvious that academia and government on the division of China's legal system is consistent. Economic Law of China's legal system has become one of the basic sectors in China, not only "practical significance of economic law on the" objective reality, and the official views of economic law has been defined as "adjustment for state management of economic activity generated by social relations laws." [19] "economic law as a superstructure, with its relative independence, compared to other methods, it is a direct to address the contradictions within the economic field. adjustment of the economic relations between the economic and legal, behavioral motivation is economic, the economic content, the occurrence or require its effect mainly occurred in the economy. "[20]

(B accurately reflect the essential characteristics of land development rights, the right system is conducive to the implementation of land development

Land development rights will be characterized as the right sense of economic law, to accurately reflect the essential characteristics of land development rights the modern relationship between the new development of land, making the division of public power and the limitations of prominent private rights, and the emergence of economic law to overcome the this limitation. "pursuit of economic law to realize their value, and maintain social order and social interests is a basic form of public authority intervention in the market of spontaneous order, the power factors and resources, property, a combination of factors, in order to achieve social justice." [ 21] the right to refer to national economic development, organizations and individuals involved, engaged in economic development, and be able to enjoy the benefits of these developments, the right the right to development, including the right to two: one for the right to participate; one for the right of return. development The essence of the human right to social and economic rational allocation of resources that provide equal opportunities to obtain incremental benefits and enjoy these benefits. [22] State intervention in the legal form of land use change is the essence of the system follows the national land development rights intervention in the economic law concept.

China's outstanding economic law of land legislation color. First, the file name of the multi-country land legislation known as the "management" word. National People's Congress Standing Committee on the land through three specialized law, <<People's Republic of Land Management Act>> (hereinafter referred to as <<>>,<< Republic of China Land Management Law of Urban Real Estate>> (hereinafter referred to as <<Urban Real Estate Administration Law>> and the "PRC Rural Land Contracting Law> > (hereinafter referred to as <<Rural Land Contract Law>> where <<Land Administration Law>> and <<Urban Real Estate Administration Law>> name as a "management" word. legislation is the name of the file contents of legislative documents highly concentrated, with strong representation of the Legislative file name as a "management" word, reflecting the state or government factors in the market economy relations, including the impact of land relations, economic law characteristics significantly. Second, the contents of the documents of land legislation reflects the values ​​of economic law. Economic Law values ​​the interests of society as a whole, China's land legislative documents, regardless of file name in the legislation known as the "management" word, or not as a "management" word, and its purpose are reflects the significant values ​​of economic law, from the overall interests of society, adjusting the national management and coordination of the national economy in the process of economic relations again, the majority of economic laws and regulations. Different legal department composed by different legal norms. Economic Law by a series of specific economic and legal norms of composition. Civil composed by a series of civil laws and regulations. Criminal Law by a series of Criminal laws and regulations of the composition, although in the same land may exist in the legal documents of economic laws and regulations, civil and criminal legal norms legal norms. But as a whole, in the land in legal documents, economic and legal norms and civil laws and regulations, criminal laws and regulations compared to the majority of economic laws and regulations.

In summary, the land development rights on the system of land rights and land use process to determine development, land development rights concerns of economic law everywhere shows the overall interests of the community values ​​and economic law of state intervention "shadow" . Land development rights only be characterized as the right sense of economic law, in order to reflect China's land development rights should be the legal nature, to the land from the perspective of economic law of scientific development rights provisions, in order to thoroughly understand the spirit of the land development rights system, in order to In the course of the exercise of land development rights, according to the established system of economic law, economic law correctly apply the principles and methods, appropriate use of economic law remedies, the development of China's land tenure system to ensure the implementation, to ensure the legitimate rights of the parties .





Notes:
[1] See Qiang Chai: <<national (regional land systems and policies>>, Beijing Economic College Press, 1993, p. 106.

[2] See Professor Liang: <<rely on restricting the abuse of public power,>>, http://www. Civillaw. Com. Cn / access date: January 19, 2010.

[3] See the letter and the process: <<economic law and the government's economic management>>, Guangdong Higher Education Press, 2000, p. 44.

[4] See the letter and the process: <<Economic Law and the government's economic management ", Guangdong Higher Education Press, 2000, p. 48.

[5] See Okuda Chang said so: <<Property of the important issues>>, a Fiji Court double book, 1975, p. 208.

[6] See Zhao Shang Park: <<urban land use system research - Europe, the United States and Asia countries to explore urban land use system>> China City Press, 1996, p. 35-36.

[7] Zhu is not easy to see: <<On the property law of the land development rights and human rights law the right to development of institutional fit>> set <<Political and legal>> 2009 9.

[8] See LIU Ming-ming: <<On the theoretical basis of land development rights>> set <<Theory Guide>> 2008 6.

[9] Danner: "TDRS - Great Idea but Questionable Value", The Appraisal Journal, April1997.

[10] Marin Agricultral Land Trust. Development or Farmland? News letter. Fall2001, http://www.malt. Org / about / history. Html, access date: August 16, 2010.

[11] Kaplowitz, M., Machemer, P. and Pruetz. R., "Planners'Experiences in Managing Growth Using Trans ferable Development Rights (TDR in the United States", Land Use Policy, 25,2008.

[12] See Ryan: <<Introduction to the Civil Code>>, PTY Ltd., company law books, 1962, p. 163.

[13] See Wu Wenhan <<state ownership and the right to appropriate separation of business>>, Lanzhou University Press 1991, p. 217-227 pages.

[14] Sun Hung: <<China's land development rights research: land development and resource protection a new perspective>>, China Renmin University Press, 2004, p. 42.

[15] Cheng letter and: <<On the practical significance of the economic law ", in <<Sun Yat-sen University (Social Sciences>> 1992 No. 3, p. 5.

[16] Wang Weicheng: <<lay a solid foundation for the rule of law ─ ─ Wang Weicheng on the establishment of a socialist legal system with Chinese characteristics ", in <<Daily>> May 26, 1999.

[17] Li: <<National People's Congress Standing Committee Work Report>> set <<Daily>> March 20, 2001.

[18] Wu Bangguo: <<strengthen legislation to improve the quality of legislation for the formation of a socialist legal system with Chinese characteristics and strive>> set <<Daily>> February 1, 2004.

[19] Li: <<National People's Congress Standing Committee Work Report>> set <<Daily>> March 20, 2001.

[20] Rui Mu: <<Overview of Economic Law "(serial, containing <<China Legal Daily," March 16, 1984.

[21] See Hu Zhiqiang, etc.: <<On the Economic Law from the Perspective of public power>> set <<Zhengzhou University (Philosophy and Social Sciences>> 2005 6.

[22] See the letter and the process: <<Outline of Economic Law of basic rights framework>> set <<Gansu Social Sciences>> 2006 1.

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