Four Major Problems in Land System Reform Urgently Need Solutions

The current land management system achieves goals such as farmland protection, preservation and appreciation of state-owned land assets, and urbanization at the expense of the rights and interests of collective land rights holders. However, this management model, which puts the word "strict" first, has not achieved its established goals; instead, it endangers national stability and social harmony. For China's land management to embark on a path of sound development, it must, on the basis of respecting the socialist market economy, guided by rights protection and grounded in the principle of proportionality, reform the relevant systems.

I. Further Clarify the Property Rights of State-Owned Land and Collective Land

For collective land, the original form of collective land ownership should be restored in theory in accordance with "ownership by shares" and "shareholding cooperation." It is suggested that the Standing Committee of the National People's Congress, in accordance with the principle of "ownership by shares," provide a legislative interpretation of Article 59 of the Property Law, which states that "immovable property and movable property owned by a farmers' collective belong to the collective ownership of all members of that collective," or that the Supreme People's Court provide an interpretation through guiding cases or judicial replies.

During the land system reforms of the mid-20th century, the "advanced cooperatives" characterized by "ownership by shares" were established through the "Model Charter of Advanced Agricultural Production Cooperatives" promulgated by the Third Session of the First National People's Congress, while the "abstract collective land ownership system" established during the people's commune period and continued to this day was originally established only through internal Party documents. Practice has proven that this institutional arrangement has numerous drawbacks; therefore, it is necessary to rebuild a land shareholding cooperative economy based on "ownership by shares."

In fact, explorations in this regard in some places in China (such as Dongguan, Zhongshan, Shunde, Nanhai, Chengdu, etc.) have already yielded considerable experience. The Ministry of Land and Resources also stated in 2011 that it "encourages the reform of the collective land shareholding system," but in the past two years no relevant systems or policies have been introduced.

For state-owned land, it should first be made clear that the National People's Congress, on behalf of all citizens, enjoys ownership of state-owned land. China's current Land Administration Law only confirms that "the ownership of land owned by the State shall be exercised by the State Council on behalf of the State," but does not confirm the subject that enjoys ownership of state-owned land. The defect of this institutional design lies in the fact that state-owned land ownership is entrusted to the State Council, yet no relevant mechanism has been designed to ensure that the latter is responsible and reports its work to the true owner of the land and its agent (the National People's Congress); second, the National People's Congress may authorize the State Council, or may establish an independent body directly subordinate to the National People's Congress, to exercise the ownership of state land.

If the National People's Congress continues to authorize the State Council to exercise the state's land ownership, it should distinguish between the state's ownership of state-owned land and the state's administrative power over land within its territory; the former is a right in the sense of private law, while the latter is a power in the sense of public law. To this end, it is suggested that the State Council separate the specific function of exercising state-owned land ownership from the land and resources management department, and authorize the state-owned assets supervision and management department or establish a specialized body to take charge of it, while the land and resources management department, on behalf of the central government, takes charge of the management of all land within China's territory. In terms of organizational and functional relations, these two bodies are independent of each other, cooperate with each other, and supervise each other.

II. Achieve Equality of Legal Status Between Collective Land and State-Owned Land

Article 6 of the current Constitution declares that ownership by the whole people and collective ownership by the working people are both important components of socialist public ownership, while Article 10 establishes two types of land ownership: state ownership and collective ownership. According to the principle of equality of ownership, the legal status of these two types of land ownership should be equal, and the legal status of the relevant land rights holders should also be equal. The state cannot deprive collective land rights holders of their rights merely on the basis of the need for farmland protection.

To this end, we must not only dispel the conceptual myth that "industrial and commercial construction can only be carried out on state-owned land" and promptly amend the provision in Article 43 of the current Land Administration Law that "any unit or individual that needs to use land for construction must apply to use state-owned land in accordance with the law," but also grant collective land use rights holders the same powers as state-owned land use rights holders, namely that whether it is collective construction land or collective agricultural land, the rights holders of collective land equally enjoy the rights of possession, use, income, and subcontracting, leasing, exchange, transfer, shareholding, guarantee, mortgage, and so on. Future reform of the land management system should focus on breaking the urban-rural dual land management structure, and base land management on the location, use, and needs of social and economic development of the land rather than on the nature of land ownership.