中国农村集体建设用地流转法律制度创新研究
发布时间：2019-06-21 02:30
【摘要】：1990年初开始,在珠江三角洲、长江三角洲及一些大城市郊区,农民利用政策和法律空间,自己创建标准厂房、仓库和店铺等用于出租；或者干脆不顾法律限制,直接进行土地的非法出租,遂以形成集体建设用地流转的“隐形”市场,且流转的数量和规模呈不断扩大之势。农村集体建设用地使用权自发、私下的隐形流转市场的存在,不仅严重干扰了国有土地市场的正常运行,而且造成集体土地收益大量流失,农民的利益得不到保护；流转过程中擅自更改土地用途使大批耕地非农化,给我国粮食的持续供给造成压力。无偿、无流动的集体建设用地使用制度扭曲了土地的资产属性,无法发挥市场机制优化配置资源的作用,不利于农村土地的优化配置和保值增值,不利于农民土地权益的保护。我国现行限制农村集体非农建设用地入市的相关法律制度已被实践证明陷入制度危机中。农村集体建设用地使用制度改革已呈不可逆转的发展趋势,这是一个不容回避的难点、热点问题。 论文从法律经济学角度,综合运用土地产权理论、制度经济学理论和法经济学理论等有关分析方法和分析工具,以农村集体建设用地使用权为切入点,以流转为核心范畴,研究了农村集体建设用地使用权流转的法律制度创新问题。论文在农村集体建设用地法律制度变迁分析的基础上,考察了农村集体建设用地的法律制度的绩效和缺陷,并重点运用法律经济学的理论方法和研究范式探讨了集体建设用地使用权流转的必要性和可行性。接着,总结归纳了全国各地在乡(镇)村企业建设用地、宅基地使用制度改革实践中的模式、经验和教训,以期为上文的理论分析做支撑。最后在“问题——原因——反馈”的逻辑思路下,对农村集体建设用地使用权制度进行了改革和创新,并给出相应的政策建议。 从农村集体建设用地法律制度变迁的过程中我们可以发现：第一,集体建设用地制度的变迁路径表现为典型的强制性制度变迁。集体建设用地由私人所有到集体所有的历史变革,满足了我国工业化初期加快资本积累、加强资源的配置能力等客观要求,政治上的考虑是集体建设用地所有权从农民个人向集体变迁的决定因素。第二,随着市场经济体制的逐步完善、城市化的快速推进,集体建设用地的财产属性日益彰显,集体建设用地制度变革的潜在收益日益增加,原有的制度均衡状态被打破,集体建设用地使用制度呈现出诱致性变迁的趋势。第三,制度变迁具有路径依赖性,集体建设用地使用制度创新过程中需要兼顾历史和现实因素,比如在历史过程中形成的农民的土地认知和土地情节。第四,根据诺斯理论,集体建设用地制度能否发生制度变革和创新并取得良好绩效,取决于制度创新的净收益大小以及中央政府、地方政府、农民集体经济组织和集体建设用地的使用者等不同的利益主体之间的利益协调度,即要求尽可能达到所有者绩效偏好与使用者绩效偏好的趋同。 通过法律的供需分析、成本收益分析,表明：在集体建设用地使用权流转过程中,地方政府、集体经济组织、农民的收益增加,地方政府和农民具有内在的积极性和创造性；中央政府的收益相对减少,减少部分转移给了农民及集体经济组织,但社会总福利是增加的,即集体建设用地使用权流转制度变革的净收益是增加的,集体建设用地使用权入市流转是合理的也是必然的,但是需要构建完善的农村土地市场,规范交易行为,积极供给法律制度。 各地在乡(镇)村企业建设用地流转过程形成了“芜湖模式”、“南海模式”；在宅基地流转过程中,天津的“以宅基地换房”模式得到中央的肯定,并迅速在全国各地推广,江都“集中居住”过程中也采用了此模式。通过农民合作参与市场过程,是中国农民参与工业化和城市化过程的一种制度保证。其具体形式多种多样,不同的做法各有千秋,有效率的组织和制度最具生命力,自然会发展壮大,同时也需要政府的支持和保护。我国国情复杂,而且由于各地经济发展水平的差异以及政府行为偏好的差异,各地探索的流转模式自有其针对性、合理性,这也是因地制宜、实事求是的表现。这些模式虽各具特色,但形成了一个共同的命题：即集体建设用地使用制度改革应当以市场化流转为改革的方向。这一改革的关键仍然是土地产权制度的创新,这一改革的核心是保障农民的权益,使农民参与到国家的城市化进程之中,分享土地用途转变带来的土地级差收益。 允许集体建设用地使用权流转,实现城乡建设用地市场接轨,是进一步深化土地市场化改革、规范土地市场秩序的必然选择,这一选择有着充分的理论依据。首先,从经济学角度而言,土地资产价值的凸显是集体建设用地使用权流转的根源,集体建设用地使用权流转是克服土地利用外部性、保护农民权益的必然要求；其次,从法学角度而言,集体建设用地使用权流转符合物权平等保护的要求、符合《宪法》、《民法通则》的立法宗旨,是农民利益的法制化、制约权利滥用的必然要求。 如何创新农村集体建设用地法律制度是本文研究的关键。论文提出了农村集体建设用地法律制度改革的总体目标、指导思想和完善法律制度体系的要求,并指出农村集体建设用地法律制度创新需要考虑制度创新与现行法律规定妥善衔接的问题,即这一改革仍需在经济社会发展可承受的范围之内,力求制度的创新成本最小。最后分别从流转的条件、途径、程序、收益分配以及配套改革措施等问题做了相应的探讨,并提出一些政策建议。
[Abstract]:At the beginning of 1990, in the Pearl River Delta, the Yangtze River Delta and some of the suburbs of large cities, the farmers used policy and legal space to create standard factory buildings, warehouses and shops for rent; or, regardless of the legal restrictions, directly carry out the illegal lease of the land, In order to form the "invisible" market of the collective construction land flow, the quantity and scale of the circulation are expanding. The existence of the spontaneous and private hidden circulation market of the rural collective construction land use right not only seriously interferes with the normal operation of the state-owned land market, but also causes a large amount of loss of collective land income, and the interests of the farmers are not protected; The change of land use in the process of the transfer of land makes a large number of cultivated land non-agricultural, which causes pressure to the continuous supply of grain in China. The system of non-free and non-flowing collective construction land uses the system to distort the property of the land, and can't play the role of the market mechanism to optimize the allocation of resources, which is not conducive to the optimal allocation of the rural land and the value-added value, which is not conducive to the protection of the farmers' land rights and interests. The relevant legal system of the current restricted rural collective non-agricultural construction land in China has been proved to be in the system crisis. The reform of the rural collective construction land use system has become an irreversible trend, which is a difficult and hot issue that can't be avoided. From the angle of legal economics, the paper makes a comprehensive use of the theory of land property right, the theory of institutional economics and the theory of law economics, etc. On the Innovation of the Legal System of the Transfer of the Right to the Use of the Land for Collective Construction in the Rural Areas On the basis of the analysis of the change of the legal system of collective construction land in the rural areas, this paper, on the basis of the analysis of the change of the legal system of the rural collective construction land, has examined the performance and the defects of the legal system of the collective construction land in the rural areas, and the necessity and feasibility of the transfer of the right to use the collective construction land by using the theoretical method and the research paradigm of the law economics. Then, the model, experience and lessons of the reform of the construction land and the use system of the home base in the villages and towns of the country are summarized, with a view to supporting the theoretical analysis above. Finally, under the logical thought of the "Problem _ Reason _ Feedback", the system of the rural collective construction land use right is reformed and innovated, and the corresponding policy construction is given. On the basis of the change of the rural collective construction land legal system, we can find that the change path of the first and the collective construction land system is typical of the mandatory system The change of the degree of collective construction is from all the historical changes of the private to the collective, and the objective requirements of accelerating the accumulation of capital and strengthening the allocation ability of the resources in the early stage of the industrialization of our country. The political consideration is the decision of the ownership of the collective construction land to change from the individual to the collective. Second, with the gradual improvement of the market economic system and the rapid development of the urbanization, the property attributes of the collective construction land are becoming more and more obvious, the potential income of the change of the collective construction land system is increasing, and the original system equilibrium state To be broken, the system of collective construction land use shows the induced change Third, the system change has the path dependence, the collective construction land use system innovation process needs to take into account both historical and realistic factors, such as the land cognition and soil of the peasants formed during the historical process Fourth, according to the North's theory, the collective construction land system can change and innovate the system and achieve good performance, depending on the net income of the system innovation and the central government. The interest coordination between different stakeholders, such as the government of the party, the collective economic organization of the farmers and the users of the collective construction land, is the requirement to achieve the owner's performance preference and the user's performance preference as much as possible Through the analysis of the supply and demand of the law and the analysis of the cost income, it is shown that in the process of the transfer of the right to use the collective construction land, the income of the local government, the collective economic organization and the peasants is increased, and the local government and the peasants have the inherent enthusiasm and creativity; the central government's collection The benefit is relatively reduced, and the reduced part is transferred to the farmers and the collective economic organizations, but the general welfare of the society is increased, that is, the net income of the change of the transfer system of the collective construction land use right is increased, and the use right of the collective construction land to the market is reasonable. It is also inevitable, but it is necessary to construct the perfect rural land market, regulate the transaction behavior, and actively supply To the legal system, the "Wuhu model" and the "South China Sea model" are formed in the construction land circulation process of the township (town) village enterprise. In the process of the transfer of the homestead, the "to change the house with a house base" mode of Tianjin is confirmed by the center, and is rapidly popularized in all parts of the country, and in the course of the "centralized residence" of the river This mode is also used. The participation of the farmers in the market process is the process of the participation of Chinese farmers in the process of industrialization and urbanization One kind of system guarantee. The specific form of the system is diverse, different approaches are all in the fall, the effective organization and the system are the most vital, the natural will develop and grow, and at the same time, it also needs administration The support and protection of the government is complicated, and due to the difference in the economic development level and the difference of the government's behavior preference, the circulation pattern explored by various localities has its pertinence and rationality, which is also local to local conditions. Seeking truth from facts, these models have their own characteristics, but form a common proposition that the reform of the system of the use of collective construction land should be based on the market-oriented flow The key to the reform is the innovation of the land property right system, the core of this reform is to guarantee the rights and interests of the peasants, to make the peasants participate in the process of the urbanization of the country and to share the change of land use It is an inevitable choice to further deepen the reform of the land market and regulate the order of the land market, which is an inevitable choice for further deepening the reform of the land market and regulating the order of the land market. First, from the angle of economics, the highlight of the value of land asset is the source of the transfer of the right to use the collective construction land, the circulation of the right to use the collective construction land is the inevitable requirement to overcome the externality of land use and protect the rights and interests of the peasants; On the other hand, from the angle of law, the transfer of the right to the use of the collective construction land is in accordance with the requirement of the equal protection of the real right, and is in accordance with the legislative purpose of the Constitution and the General Principles of the People's Republic of China, which is the legalized and restricted of the interests of the peasants. The Inevitable Requirements of the Abuse of Rights. How to Innovate the Rural Collective Construction Land Law The paper puts forward the overall goal, the guiding ideology and the requirements of perfecting the system of the legal system, and points out that the innovation of the legal system of the rural collective construction land needs to take into account the system innovation and the current system. The question of the proper connection of the law, that is, the reform still needs to be within the context of the economic and social development, The innovation cost of the system is the least. Finally, the paper discusses the conditions, the way, the procedure, the income distribution and the supporting reform measures, and so on.
【学位授予单位】：南京农业大学
【学位级别】：博士
【学位授予年份】：2008
【分类号】：D922.3;D923.2;F301
[Abstract]:At the beginning of 1990, in the Pearl River Delta, the Yangtze River Delta and some of the suburbs of large cities, the farmers used policy and legal space to create standard factory buildings, warehouses and shops for rent; or, regardless of the legal restrictions, directly carry out the illegal lease of the land, In order to form the "invisible" market of the collective construction land flow, the quantity and scale of the circulation are expanding. The existence of the spontaneous and private hidden circulation market of the rural collective construction land use right not only seriously interferes with the normal operation of the state-owned land market, but also causes a large amount of loss of collective land income, and the interests of the farmers are not protected; The change of land use in the process of the transfer of land makes a large number of cultivated land non-agricultural, which causes pressure to the continuous supply of grain in China. The system of non-free and non-flowing collective construction land uses the system to distort the property of the land, and can't play the role of the market mechanism to optimize the allocation of resources, which is not conducive to the optimal allocation of the rural land and the value-added value, which is not conducive to the protection of the farmers' land rights and interests. The relevant legal system of the current restricted rural collective non-agricultural construction land in China has been proved to be in the system crisis. The reform of the rural collective construction land use system has become an irreversible trend, which is a difficult and hot issue that can't be avoided. From the angle of legal economics, the paper makes a comprehensive use of the theory of land property right, the theory of institutional economics and the theory of law economics, etc. On the Innovation of the Legal System of the Transfer of the Right to the Use of the Land for Collective Construction in the Rural Areas On the basis of the analysis of the change of the legal system of collective construction land in the rural areas, this paper, on the basis of the analysis of the change of the legal system of the rural collective construction land, has examined the performance and the defects of the legal system of the collective construction land in the rural areas, and the necessity and feasibility of the transfer of the right to use the collective construction land by using the theoretical method and the research paradigm of the law economics. Then, the model, experience and lessons of the reform of the construction land and the use system of the home base in the villages and towns of the country are summarized, with a view to supporting the theoretical analysis above. Finally, under the logical thought of the "Problem _ Reason _ Feedback", the system of the rural collective construction land use right is reformed and innovated, and the corresponding policy construction is given. On the basis of the change of the rural collective construction land legal system, we can find that the change path of the first and the collective construction land system is typical of the mandatory system The change of the degree of collective construction is from all the historical changes of the private to the collective, and the objective requirements of accelerating the accumulation of capital and strengthening the allocation ability of the resources in the early stage of the industrialization of our country. The political consideration is the decision of the ownership of the collective construction land to change from the individual to the collective. Second, with the gradual improvement of the market economic system and the rapid development of the urbanization, the property attributes of the collective construction land are becoming more and more obvious, the potential income of the change of the collective construction land system is increasing, and the original system equilibrium state To be broken, the system of collective construction land use shows the induced change Third, the system change has the path dependence, the collective construction land use system innovation process needs to take into account both historical and realistic factors, such as the land cognition and soil of the peasants formed during the historical process Fourth, according to the North's theory, the collective construction land system can change and innovate the system and achieve good performance, depending on the net income of the system innovation and the central government. The interest coordination between different stakeholders, such as the government of the party, the collective economic organization of the farmers and the users of the collective construction land, is the requirement to achieve the owner's performance preference and the user's performance preference as much as possible Through the analysis of the supply and demand of the law and the analysis of the cost income, it is shown that in the process of the transfer of the right to use the collective construction land, the income of the local government, the collective economic organization and the peasants is increased, and the local government and the peasants have the inherent enthusiasm and creativity; the central government's collection The benefit is relatively reduced, and the reduced part is transferred to the farmers and the collective economic organizations, but the general welfare of the society is increased, that is, the net income of the change of the transfer system of the collective construction land use right is increased, and the use right of the collective construction land to the market is reasonable. It is also inevitable, but it is necessary to construct the perfect rural land market, regulate the transaction behavior, and actively supply To the legal system, the "Wuhu model" and the "South China Sea model" are formed in the construction land circulation process of the township (town) village enterprise. In the process of the transfer of the homestead, the "to change the house with a house base" mode of Tianjin is confirmed by the center, and is rapidly popularized in all parts of the country, and in the course of the "centralized residence" of the river This mode is also used. The participation of the farmers in the market process is the process of the participation of Chinese farmers in the process of industrialization and urbanization One kind of system guarantee. The specific form of the system is diverse, different approaches are all in the fall, the effective organization and the system are the most vital, the natural will develop and grow, and at the same time, it also needs administration The support and protection of the government is complicated, and due to the difference in the economic development level and the difference of the government's behavior preference, the circulation pattern explored by various localities has its pertinence and rationality, which is also local to local conditions. Seeking truth from facts, these models have their own characteristics, but form a common proposition that the reform of the system of the use of collective construction land should be based on the market-oriented flow The key to the reform is the innovation of the land property right system, the core of this reform is to guarantee the rights and interests of the peasants, to make the peasants participate in the process of the urbanization of the country and to share the change of land use It is an inevitable choice to further deepen the reform of the land market and regulate the order of the land market, which is an inevitable choice for further deepening the reform of the land market and regulating the order of the land market. First, from the angle of economics, the highlight of the value of land asset is the source of the transfer of the right to use the collective construction land, the circulation of the right to use the collective construction land is the inevitable requirement to overcome the externality of land use and protect the rights and interests of the peasants; On the other hand, from the angle of law, the transfer of the right to the use of the collective construction land is in accordance with the requirement of the equal protection of the real right, and is in accordance with the legislative purpose of the Constitution and the General Principles of the People's Republic of China, which is the legalized and restricted of the interests of the peasants. The Inevitable Requirements of the Abuse of Rights. How to Innovate the Rural Collective Construction Land Law The paper puts forward the overall goal, the guiding ideology and the requirements of perfecting the system of the legal system, and points out that the innovation of the legal system of the rural collective construction land needs to take into account the system innovation and the current system. The question of the proper connection of the law, that is, the reform still needs to be within the context of the economic and social development, The innovation cost of the system is the least. Finally, the paper discusses the conditions, the way, the procedure, the income distribution and the supporting reform measures, and so on.
【学位授予单位】：南京农业大学
【学位级别】：博士
【学位授予年份】：2008
【分类号】：D922.3;D923.2;F301
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