Dare to explore and actively promote the circulation of collective construction land use rights

Tu, Deputy Director of Guangdong Provincial Department of Land and Resources

The Third Plenary Session of the Seventeenth Central Committee of the Communist Party of China adopted the Decision of the Central Committee on Several Major Issues in Promoting Rural Reform and Development, which is a major decision made by the Central Committee in view of the current rural development situation and is very in line with the reality of China. The Decision puts forward higher requirements and challenges for China's land management, points out the direction for us to further implement the Scientific Outlook on Development and effectively protect the legitimate rights and interests of farmers' land, and also provides a great opportunity for us to create a new situation in land management. The "Decision" clearly puts forward that the unified urban and rural construction land market should be gradually established, and the land use right of rural collective management construction land obtained according to law must be openly standardized through the unified tangible land market, and enjoy the same rights and interests as state-owned land on the premise of conforming to the plan. This provides a strong basis for us to vigorously carry out the transfer of collective construction land use rights.

Since 200 1, Guangdong province has carried out the pilot work of collective construction land use right transfer, especially in 2005, the provincial government promulgated the "Administrative Measures for the Transfer of Collective Construction Land Use Right in Guangdong Province" (Guangdong Provincial People's Government DecreeNo. 100), which attracted great attention at home and abroad and was called the "second agrarian revolution". Here is a brief introduction.

First, the main practices of carrying out circulation work

(A) Emancipate the mind and be brave in innovation

According to Article 63 of the Land Management Law of the People's Republic of China, the land use right collectively owned by farmers shall not be sold, transferred or leased for non-agricultural construction (except for enterprises that meet the overall land use planning and obtain construction land according to law and transfer the land use right according to law due to bankruptcy, merger and other reasons). This makes the right to use collective construction land not allowed to flow freely in law, and its asset value cannot be revealed. However, with the development of urbanization in urban and rural areas of Guangdong Province, the asset nature of collective construction land has gradually emerged, and the spontaneous circulation of collective construction land use rights in the form of transfer, transfer, lease and mortgage has occurred frequently, forming a certain number and scale, and the invisible market of collective construction land has become an objective existence. This situation is particularly prominent in the economically developed Pearl River Delta region. According to a preliminary investigation, the Pearl River Delta region uses more than 50% of rural collective construction land through circulation, and the proportion in eastern Guangdong, western Guangdong and northern Guangdong is also above 20%. This reflects that under the condition of market economy, the internal demand of collective construction land use right transfer is reasonable.

There are also many problems in the spontaneous circulation of various forms of collective construction land, which also restricts the development of rural economy. The country and Guangdong Province have been paying close attention to this issue for a long time. In 2003, the Central Committee of the Communist Party of China and the State Council issued "Opinions of the State Council, the Central Committee of the Communist Party of China on Doing a Good Job in Agriculture and Rural Areas" (Zhong Fa [2003] No.3), which clearly stated: "All localities should formulate policies to encourage township enterprises to concentrate in small towns, and rationally solve the problem of land use for enterprises to enter cities and towns through collective construction land transfer, land replacement and payment of land transfer fees by stages, and reduce enterprises. At the same time, according to the spirit of emancipating the mind, seeking truth from facts and keeping pace with the times put forward by the 16th National Congress of the Communist Party of China, combined with the reality of Guangdong, the Guangdong Provincial Party Committee and the provincial government decided to carry out the transfer of collective construction land use rights from the perspective of continuous reform and development, earnestly safeguard farmers' interests and promote the construction of a new socialist countryside.

(two) do a good job in the pilot, establish rules and regulations, standardize management.

200 1 The former Shunde City (now Shunde District, Foshan City) was determined by the Ministry of Land and Resources and the Legislative Affairs Office of the State Council as a pilot project for the transfer of collective construction land use rights nationwide. With the guidance and support of the Ministry of Land and Resources and the Legislative Affairs Office of the State Council, Guangdong Province has actively and steadily carried out the pilot work. At the end of 2002, the pilot project in Shunde passed the acceptance of the Ministry of Land and Resources and the Legislative Affairs Office of the State Council. Guangdong Province timely summed up the pilot experience and formulated relevant policies, which were discussed and adopted by the Standing Committee of the Provincial Party Committee and the executive meeting of the provincial government. In June, 2003, the People's Government of Guangdong Province issued the Notice on the Trial Transfer of Rural Collective Construction Land Use Right (No.51of Guangdong Government [2003], hereinafter referred to as the Notice) as a normative document guiding the transfer of collective construction land use right in the whole province. Although the Notice has made clear the direction for the development of circulation work in Guangdong Province and built a basic institutional framework, it has strong principles, and many specific operational issues in circulation practice are not clearly standardized, with a low legal level. Therefore, from the second half of 2003, Guangdong Province began to carry out legislative work. The Measures for the Administration of the Circulation of the Right to Use Collective Construction Land in Guangdong Province (hereinafter referred to as the Measures) was unanimously adopted at the 66th executive meeting of the 10th provincial government on May 17, 2005. On June 23, the administrative measures were officially promulgated by the provincial government orderNo. 100.

(three) clear transfer object, to prevent illegal land from entering the market.

Article 3 of the Administrative Measures clearly stipulates the scope of circulation: the expropriation of farmers' collective land for non-agricultural construction shall conform to the national industrial policy and the overall land use planning, urban planning or village and market town planning. Involving the conversion of agricultural land into construction land, the agricultural land conversion index of the annual land use plan shall be implemented. At the same time, Article 4 of the Administrative Measures stipulates that the right to use collective construction land shall not be transferred under any of the following circumstances: it does not conform to the overall land use planning, urban planning or village and market town planning; Land ownership is controversial; Judicial organs and administrative organs have ruled or decided to seal up or restrict land rights in other forms according to law; Villagers' right to use homestead. Article 5 stipulates that collective construction land acquired through transfer, transfer or lease shall not be used for commercial real estate development and residential construction.

(4) Vigorously publicize and do basic work.

First, do a good job in publicity. After the promulgation of Guangdong Provincial Government 100 Order, in order to expand social influence and implement it as soon as possible, the provincial government held a press conference on August 4, 2005, with the participation of relevant provincial departments and many media inside and outside the province. The heads of the Provincial Legislative Affairs Office and the Provincial Department of Land and Resources answered questions from media reporters, and many media made special reports on this. Subsequently, the Provincial Department of Land and Resources specially issued a question-and-answer booklet, which was distributed to townships (towns) and villages to expand publicity. At the same time, the Notice on Implementing the Administrative Measures for the Circulation of the Right to Use Collective Construction Land in Guangdong Province (Guangdong Land and Resources Development [2005] 128) was issued in time, requiring the land and resources departments of cities and counties to earnestly implement the administrative measures and actively promote the organization of the circulation of the right to use collective construction land.

The second is to formulate a standard contract text. From June 5, 2005 to 10, Guangdong Provincial Department of Land and Resources issued the Notice on Printing and Distributing Relevant Contract Texts of Collective Construction Land Use Right Transfer (Guangdong Land and Resources Development [2005] No.207), which provided a normative text for the transfer work.

The third is to study and formulate the benchmark land price of rural collective construction land. Completed the pilot work of benchmark land price for rural collective construction land in Shunde District of Foshan City and Pengjiang District of Jiangmen City, and passed the demonstration of relevant experts of the state and province, which accumulated experience and laid a foundation for the full implementation in the province.

(5) Summing up experience and fully promoting it.

The circulation work in Guangdong province has attracted much attention. In June, 2005, 1 1, we summarized the successful experience and existing problems of collective construction land use right transfer in time, and the Guangdong Provincial Party Committee made a report to the central government. The State Council Policy Research Office, National Development and Reform Commission and other relevant departments also went to Guangdong for investigation. The land and resources department also timely summarized the effective practices in various places, such as the circulation of Tang Xian Village in longjiang town, Shunde District, Foshan City and the successful practice of collective circulation of collective construction land in Hetang Town, Pengjiang District, Jiangmen City with reference to the "bidding, auction and hanging" mode of state-owned land, which was printed and distributed in various places for promotion. In the second half of 2006, according to the instructions of Member the Political Bureau of the Communist Party of China (CPC) Central Committee and then Secretary of Guangdong Provincial Party Committee Zhang Dejiang, we organized an in-depth study on the circulation of collective construction land use rights in Guangdong Province, and formed a Report on the Circulation of Collective Construction Land Use Rights, which was reported to Comrade Zhang Dejiang, the provincial party committee. In June 2006, 5438+065438+ 10/0, the General Office of the Provincial Party Committee forwarded the report to the leaders at or above the provincial level and the main comrades of the municipal party committees and governments for reference, which effectively promoted the circulation of collective construction land use rights in Guangdong Province. From June 5 to February 2006, in combination with the provincial land and resources management conference, a working conference on the circulation of collective construction land use rights in Guangdong Province was held, and relevant typical materials were printed and distributed, which further promoted the circulation of collective construction land use rights in Guangdong Province.

Second, the main achievements of the circulation work

Since 2003, the Notice of Guangdong Provincial People's Government on the Trial Transfer of Rural Collective Construction Land Use Right (No.51Guangdong Government [2003]) was issued, this work has been widely carried out in various parts of Guangdong Province and achieved certain results.

(a) the circulation has initially formed a certain scale.

According to statistics, by the end of 2007, there were 13 cities in the province to carry out this work, with a circulation area of 1300 hectares and 1988 boxes, involving 2.235 billion yuan. The main forms of circulation are leasing and mortgage, accounting for more than 80%. Circulation is mainly concentrated in the Pearl River Delta region, such as Foshan, Jiangmen, Dongguan and Zhongshan. The number of circulation cases in these cities reached 1.474, covering an area of 1.252 hectares, and the amount involved was 1.858 million yuan, accounting for 74%, 96% and 83% of the total in the province respectively.

(2) Gradually form a land market integrating urban and rural areas.

Bringing the actual circulation of rural collective construction land into a standardized and legal track from intangible and spontaneous, so that rural collective construction land, as land owners, can enjoy the same rights of transfer, lease, transfer and mortgage as state-owned construction land, which is conducive to building a land market integrating urban and rural areas and further promoting the construction of a unified and orderly land market system in Guangdong Province.

(3) Promoting the adjustment of rural industrial structure and increasing farmers' income.

Since Tang Xian Village, longjiang town, Shunde District, Foshan City, 22 cases of industrial and commercial land have been transferred, with a transfer area of 1.82 mu, accounting for 23% of the industrial and commercial land in the village. Through circulation, village collective land is more used for the development of secondary and tertiary industries. At present, there are 45 people engaged in agricultural production in this village, accounting for 1.3% of the total population, and nearly 10,000 people (including foreigners) are engaged in secondary and tertiary industries, which has realized the transfer of most agricultural population to industry and commerce. The average income from land transfer and property rental in this village is more than 9 million yuan per year. In 2007, the dividend per share of the village reached more than 1.500 yuan, which greatly increased farmers' income.

(4) It has added new vitality to the rural economy, provided more employment opportunities and protected farmers' land rights and interests.

The chicken farm in Zhenjiang Village, Jianggao, Baiyun District, Guangzhou uses collective land. In the past, collective construction land could not be mortgaged, and enterprises could not borrow money. But now, according to the relevant regulations, enterprises can mortgage hundreds of millions of yuan with land, which can provide nearly a thousand jobs at once and create billions of yuan of output value. The secretary of the Party branch of the village said happily: We have begun to make village development plans, fully revitalize land assets, improve land value and build a new countryside.

(5) Effectively promote the development of rural urbanization, and farmers' lives will be more guaranteed.

Shipai village, Tianhe District, Guangzhou, has been famous for its poor street management, environmental construction and social security in the past few years. As soon as the policy that collective construction land can enter the market was introduced, the land problem was further loosened. The entry of land into the market promotes the combination of land and capital. In the past three years, Shipai Street has invested more than 4 million yuan every year for the construction of municipal facilities and the transformation of traffic environment. Now, shipai village not only has no trace of the village in the city, but also has become a computer and IT industry center with the same reputation as Zhongguancun in Beijing. In addition to municipal construction, the village has allocated some funds from property income for several years in succession, and trained 1 10,000 villagers under the age of 45, enabling them to reach a high school education level or above, improving the quality of the labor force and employment competitiveness, and greatly reducing social problems. Guangdong Province's "Administrative Measures" clearly stipulates that the transfer income of collective construction land should be included in the unified management of village collective finance, and more than 50% should be earmarked for farmers' social security, which is equivalent to providing farmers with a social security bottom line. Farmers who participate in collective cooperative medical insurance in Zhenjiang Village, Jianggao, Baiyun District are reimbursed a maximum of 50,000 yuan per year, and the problem of farmers' difficulty in seeing a doctor is basically solved. This is due to the circulation of collective construction land.

(6) Maintaining social stability and promoting the construction of a harmonious society.

At present, due to the rapid economic development, the great demand for land, and the system, mechanism, legal system and understanding level, landless farmers often petition, accompanied by some radical words and deeds, which affects social stability and the construction of a harmonious society. Contradictions mainly focus on land acquisition compensation and resettlement and farmers' living security after land acquisition. After the rural collective construction land is transferred, the village collective economic organizations sell or lease the right to use the collective construction land at the market price of the expropriated land, and the land ownership still belongs to the village collective, so there is no land acquisition and no compensation for land acquisition. According to statistics, since 2006, the number of letters and visits received by the land and resources departments has shown an obvious downward trend. From June 2008 to September 2008, the land and resources department received 2 149 letters and visits from the masses. Compared with the same period in 2007, the total number of letters and visits decreased by 9 16, a decrease of 30%, of which the number of letters and visits decreased by 1434, a decrease of 36%. One of the reasons is that the transfer of collective construction land has been implemented, which has reduced the amount of land acquisition. At the same time, the transfer of rural collective construction land has brought considerable income to rural collective economic organizations and individual farmers, provided a material basis for solving farmers' social security, provided farmers with a sense of security for their old age and medical care, resolved many deep-seated contradictions, maintained social stability and promoted the construction of a harmonious society.

Third, the main problems

Although the circulation of collective construction land use rights in Guangdong Province has achieved certain results, its development is still unbalanced and there are many problems.

Lack of legal support

The transfer of collective construction land use right is now a national pilot and the direction of deepening land management reform. However, the Land and Land Management Law of People's Republic of China (PRC) and the National Security Law of People's Republic of China (PRC) have not been amended, so they lack the support of national laws. At the same time, without the support of land law, land users and financial departments still have certain ideological concerns. Some land units dare not use collective construction land, especially some powerful large enterprises, and always think that it is safer to use state-owned land; Some banks are uneasy about the mortgage loan of collective construction land use right and have not yet carried out this business. This makes the function of collective construction land as an asset difficult to play and hinders the circulation work.

(B) the basic work of rural land management is weak

For a long time, China's land management tends to emphasize cities over rural areas and state ownership over collectives, and the basic work of rural land registration is relatively weak, especially affected by factors such as funds. The registration and certification of rural collective construction land is relatively slow, and Guangdong Province has only completed about 59%. This brings difficulties to the collective construction land market with property right transaction as the core.

(C) the relevant supporting policies are not perfect

First, the tax and fee policy is imperfect. When transferring state-owned land, you need to pay deed tax, business tax, deed tax and value-added tax. However, according to the original relevant regulations, these taxes are levied on state-owned land, and there is still no national basis for collective land transfer to pay the same taxes with reference to state-owned land, which makes it difficult for collective land transactions and collective land transactions to be on the same platform. Second, the supporting policies such as the management measures of collective land transfer income and farmers' social security measures are not perfect. All these have affected the development of this work to some extent.

(D) ideological understanding is not in place

According to the relevant provisions of the Administrative Measures, except for real estate development and residential construction, collective construction land can be used for other land, and all land proceeds are owned by farmers collectively. Therefore, some places are worried about the impact on the state-owned land market and the government's land revenue. These concerns have led some places not to actively carry out this work.

At the same time, because collective economic organizations can get more benefits from the transferred land, they generally don't want their land to be expropriated. Some places are worried that it will be "difficult to acquire land" after promoting this work, which is not conducive to the implementation of urban planning. In addition, there are different understandings on whether to collect state-owned land income when the right to use collective construction land is transferred, which hinders the smooth development of this work.

Four, improve the circulation system of countermeasures and suggestions

The circulation of rural collective construction land is a complex systematic project with strong policy and wide coverage, so it is impossible to achieve it in one step. We must constantly explore and improve in our work. The circulation system of collective construction land use right is an important part of China's land market system. It is necessary to seize the great opportunity of the Third Plenary Session of the Seventeenth Central Committee of the Communist Party of China and bring the improvement of the circulation system of collective construction land use rights into the overall framework of land market system reform. We should reform and improve China's land market system in accordance with the requirements of establishing and perfecting the socialist market economic system. According to the goal of building a new land market model, the following countermeasures and suggestions are put forward:

(1) Deepen the reform of land acquisition system and gradually narrow the scope of land acquisition. The Opinions of the Central Committee of the State Council on Promoting the Construction of a New Socialist Countryside (Zhong Fa [2006] 1No.) clearly puts forward: "In accordance with the requirements of narrowing the scope of land acquisition, improving compensation methods, expanding resettlement channels and standardizing land acquisition procedures, accelerate the reform of land acquisition system and further explore reform experience." "the Central Committee of the Communist Party of China's Decision on Several Major Issues in Promoting Rural Reform and Development" also clearly stated: "Reform the land acquisition system, strictly define public welfare and business construction land, gradually narrow the scope of land acquisition, and improve the compensation mechanism for land acquisition." Paragraph 3 of Article 13 of the Constitution of People's Republic of China (PRC) and Paragraph 4 of Article 2 of the Land Administration Law of the People's Republic of China stipulate that the state may expropriate or requisition land according to law and make compensation for the needs of public interests. Therefore, it is necessary to further define the scope of public interest, try not to expropriate land that does not belong to public interest, narrow the scope of land expropriation, and protect farmers' interests from the source. Land demand that does not belong to the public interest can be solved through the collective land market.

(2) Revise and improve the provisions of relevant laws and regulations. First, revise and improve the relevant provisions of the Land Administration Law of the People's Republic of China. The Land Management Law of the People's Republic of China clearly stipulates that land use rights can be transferred according to law. Accordingly, the provisions of Articles 43 and 63 of the Land Administration Law of the People's Republic of China should be appropriately revised and improved, so that the circulation of collective construction land use rights can be based on laws and rules. Amend and improve the relevant provisions of Article 10 of the Land Management Law of the People's Republic of China, and clarify which level of village collective economic organization the main body of collective land belongs to. The second is to revise and improve the relevant provisions of Article 34 of the Guarantee Law of People's Republic of China (PRC), and make it clear that the right to use collective construction land can be mortgaged according to law. Furthermore, it is necessary to revise and improve the relevant tax policies, so that the transfer of collective land and state-owned land needs to pay the same taxes and fees, build the same platform for the collective land market and state-owned land market, and lay the foundation for realizing the ultimate goal of "the same land, the same rights and the same price" for collective land and state-owned land.

(3) Intensify publicity and raise awareness. At present, the resistance to the circulation of collective construction land is the lack of social understanding. Investment enterprises, land owners (rural collectives), relevant departments in the economic field and other social departments do not know much about this work. They have always believed that only state-owned land can be sold, transferred and mortgaged, and there are some doubts in their hearts. Local governments also have some concerns because it involves land revenue. Therefore, it is necessary to intensify publicity, thoroughly publicize and implement relevant policies and regulations, such as the Decision of the Central Committee on Promoting Some Major Issues in Rural Reform and Development, the Decision of the State Council on Deepening Reform and Strict Land Management, and the Measures for the Management of the Circulation of Collective Construction Land Use Rights in Guangdong Province, and strive to raise the awareness of all sectors of society and local governments on this work, eliminate ideological concerns and actively promote the circulation work. The circulation of collective construction land use right is a new thing in land management and a reform and innovation. All localities should boldly practice and innovate, explore practical management methods and operating procedures, and look at this work from the perspective of establishing and perfecting a unified land market system in urban and rural areas, from the perspective of facilitating the construction of a market economic system, accelerating agricultural development and protecting farmers' legitimate rights and interests.

(4) Relevant departments should strengthen cooperation and coordination to ensure orderly circulation. This work involves land and resources, construction, planning, labor and social security, prices, finance, agriculture, finance, auditing, civil affairs and other departments. Therefore, we should strengthen the leadership of the government, strengthen communication, cooperation and coordination among various departments, and formulate relevant supporting policies systematically and scientifically to ensure the healthy and orderly development of this work.

(5) Do relevant basic work to ensure smooth circulation. Conforming to the overall land use planning and having legal collective land property rights are the premise and basis for the circulation of collective construction land use rights. All localities should take the opportunity of the revision of the new round of overall land use planning, scientifically and rationally compile the overall land use planning of townships (towns) and villages, do a good job in linking the planning of cities, villages and market towns, reserve certain land development space for village collectives, and equip them with reasonable land use indicators. Combined with the investigation of land use renewal, we should do a good job in confirming the rights of collective land, complete the registration and certification of collective land as soon as possible, and protect the legitimate rights and interests of land owners and users. At the same time, the land price system of collective construction land should be established reasonably as soon as possible, and the benchmark land price of collective construction land should be formulated to promote the standardized development of collective land market.

(6) Strengthen the overall land use planning and land revenue management to ensure the healthy development of circulation. The circulation of collective construction land must conform to the overall land use planning, have legal property rights, prevent the phenomenon of arbitrarily modifying and breaking through the overall land use planning, and must not appear the circulation situation that does not conform to the overall land use planning, and resolutely prevent collective agricultural land from being converted into collective construction land at will, especially the occupation of cultivated land or basic farmland into construction land. For the collective land transfer income, the relevant departments should formulate measures for the use and management as soon as possible, strengthen the supervision and management of collective land income, and resolutely prevent townships (towns) and village cadres from taking advantage of loopholes to embezzle collective land assets or lead to the loss of collective land assets.