农村土地集体所有的困惑与消解
张千帆农村土地集体所有的困惑与消解
Paradox of Collective Ownership of China's Rural Land and Its Resolution
期刊名称：《法学研究》
期刊年份：
作者：张千帆
单位：北京大学宪法与行政法研究中心
中文关键词：农村土地集体所有;城市化;土地征收;土地管理法;宪法
英文关键词：collective ownership of rural land;urbanization;land expropriation;land management law;constitution
中文摘要：
农村土地的使用权最终属于农户或农民个体，个体化的农地使用权应该受到法律尊重与保障。目前，由于农村土地使用权受到人为的法律约束，农地价值遭到极大贬损，亟需改革中国农村不合理的土地管制主义模式，将宪法赋予的集体土地财产权还给农民，并将城市化与征地脱钩。城市化涉及的实质问题是合理的城乡规划与政府审批，而当前中国各地的城乡规划严重缺乏民主参与并带有极大的随意性。要保证规划与审批的合理性，必须通过民主立法和参与程序保障政府规划权的行使符合多数民意，并通过适当的司法审查机制保证规划目的与程序的合法性。
英文摘要：
According to Article 10 of the 1982 Constitution, a dualist structure of land ownership was established in China. Such an institutional arrangement was originally intended to better protect rural land and the interest of peasants, but has now degenerated into the most serious discrimination against the peasants in China. Not only is the use of rural land strictly regulated, but the title of rural land cannot be transferred without being first expropriated by government and converted into state land. This article discusses the nature of the collective ownership of China's rural land, and aims to reconstruct a more peaceful and just land management regime. In contrast to the city land owned by the state or the whole people, the collectively owned rural land may acquire a degree of substantive ownership. Nevertheless, lessons from China's history indicate that the right to use the rural land shall ultimately resides in individual peasants or their households, and such individualized right shall be respected and protected by law. China's rural land has long been greatly devalued, however, by the legal restrictions on the right to use rural land. The irrational and discriminative regulatory regime over China's rural land needs fundamental reform, so as to return to the farmers the collective land property right as conferred by the 1982 Constitution, and to disconnect land expropriation with the urbanization process. In fact, the substantive issue associated with urbanization is the urban planning and the examination and approval of the land use change by local governments. In this respect, the existing planning process in China, seriously deficient in democratic participation, is often carried out at the mercy of official whim. The American experience of bringing rule of law to the local zoning and review processes may provide some inspiration for China. To assure the rationality of local planning and related examination and approval, it is indispensible to bring democracy to the legislative and civil participatory processes. It is also necessary to establish an appropriate judicial review mechanism to safeguard the legality of the purpose and procedure of planning.
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