【作者】 张明；

【导师】 郑成良； 姚建宗；

【作者基本信息】 吉林大学 ， 法学理论， 2011， 博士

【摘要】 国家土地征收所产生的侵犯农民权利问题是我国城市化和现代化进程中最突出和最严重的问题之一,因征地引发的群体性事件已占全国农村群体性事件的绝大多数,对我国的社会稳定和经济的健康发展造成极为不利的影响。现有对土地征收的研究主要存在两个问题:一是缺少从历史上考察农民的土地权利状况,因而不能对当下侵害农民土地权利的现状给予历史上的解答;二是现有的研究更多的是针对制度本身的缺陷来完善制度,缺乏透过制度表面来发掘其背后的价值理念问题,而这正是问题的根本所在。这引起作者对国家征收权与农民权利关系的理论思考。通过对古代土地制度的考察,论证中国古代缺乏现代意义的土地所有权制度,从未赋予私人对土地享有绝对的、排他的、独占性权利。这是由中国古代政治、经济、法律制度都是围绕“王权观念”进行的制度设计的结果。政治权力主宰着土地私权利。中国古代始终没有形成对个人财产权利予以尊重的观念和传统,也就不会产生与其相适应的制度设计。私人土地权利始终受到国家公权力的威胁,其权利内容是不完整的,权利状态是不稳定的。对建国以来中国农民土地权利制度的梳理,考察农民土地权利制度从私有到集体所有集体经营,再到集体所有家庭经营的变迁,旨在发掘土地集体所有制在中国产生的过程。对私有财产权理论进行梳理,从人性论和自然法理论角度论证私人财产权的正当性基础。研究国家征收权设置的目的,论证国家征收权的正当性基础在于实现公共利益。国家征收权是国家基于公共利益的目的行使的,强制限制或剥夺被征收人财产权利的一种国家公权力。国家征收权在当下的中国已经完全异化为侵犯农民土地权利的工具,异化的根源在于发展理念出现了偏差,且制度设计不合理,政府成为了利益当事人。进而指出限制国家征收权的有效途径:公共利益的目的性限制、正当程序限制和公正补偿限制。对公共利益的概念和特征进行了概括,分析了公共利益与个别利益的冲突,解决冲突的原则是公共利益优位,进而从共同体的存在和发展以及公共利益的目的两个方面来论证这一原则确立的理由。指出公共利益优位并非是不受任何限制的绝对的、普遍的原则,而是需要对公共利益本身的适用做出必要的限制,以防止其被滥用。主要是通过比例原则、法律保留原则、正当程序原则和公正补偿原则来限制。认为公共利益的界定标准应该包括受益性标准、公共性标准、公众的直接受益性和实质受益性标准以及法定性标准。指出我国土地征收制度设计不合理的深层次的、根本性的原因有二:一是价值理念出现了偏差,二是土地集体所有权制度的固有弊端。必须转换观念,从过分追求经济发展,强调一切为经济建设服务到在追求经济发展的同时要充分尊重和保障人权的转向;从国家本位主义的国家立场到适度提升个人主义的权利立场的转向,牢固树立保护农民权利的基本理念,在此基础上实现两个制度的重构,即农村土地所有权制度的重构和土地征收制度的重构,指出前一制度的创新是彻底解决农民权利问题的根本之道。通过对古代西欧马尔克公社和古代印度村社的两种土地集体所有制的比较研究,指出集体所有制的存在必须有特定的经济基础和社会基础,是与生产力比较落后相适应的、比较原始和落后的制度安排。剖析我国农村集体土地所有权制度的弊端在于所有权主体虚位、所有权的权能残缺、所有权性质模糊,与国家所有权地位的不平等性,已经不具有所有权的典型特征,弱化成了“准所有权”,极易受国家公权力的侵犯,指出该制度的固有弊端是难以通过制度内部的修改而完善的。在对几种主要改革方案的比较分析的基础上,提出未来中国农村土地制度的改革方向应该是建立以农民所有制为主体、多种所有制并存的观点,从多个方面对其进行理论证成,在回答了反对者的多项质疑的基础上,提出改革实施条件的初步设想:当下中国不具备实施条件,在未来的几十年后,政治上更加民主,法治建设达到一定水平,城市化达到一定程度,社会保障制度已经惠及到全体农民,户籍制度改革和税收制度改革等前置性或配套性改革已经基本到位,在这些条件基本具备的情况下方可稳步实施。在坚持农民权利本位的基础上重构土地征收制度。在公共利益立法模式的选择上,主张选择概括加列举的模式,提出实行双向列举式的主张。在征收的程序制度方面,主张建立公共利益的认定程序,建立协议价购程序,完善被征收人的参与程序、听证程序和权利救济程序,建立收回权制度。在征收补偿制度方面,主张确定公正补偿原则;以征收机关为补偿义务主体,以农民为主要的补偿权利主体;扩大补偿范围,应将受征收重大影响的其他损失也列入进来;对被征地的补偿以市场价格补偿标准为基础标准,同时辅之以加成补偿标准和重置价格补偿标准;在征地补偿方式上应该确立以货币补偿为原则,以非货币补偿或替代补偿为补充的补偿方式体系。更多还原

【Abstract】 Infringement of farmers’rights due to the land acquisition by the state is one of the most prominent and serious problems in the process of modernization and urbanization in our country, and the incidents involving rural masses engendered by the state expropriation of land have already accounted for the majority of the nationwide rural masses events, making up a great threat to the stability of the whole society and the healthy development of economics in our country. Principally, in the current studies of land rights of farmers and land expropriation in China there are two problems: one is the absence of a historic investigation into the circumstances of the land rights of farmers, hence no historic elucidation can be given to the status quo of farmers’land rights being trespassed at present; and the other is the deficiency in uncovering the problems of values behind the existing system, apart from the efforts on how to remedy the defects of the system of its own for its perfection. All this has brought about the author’s theoretical thinking about the relationship between the eminent domain of the state and the land rights of the farmers.Via a survey of the ancient land system, it is demonstrated that ancient China was short of land ownership in its modern sense, and that no absolute, exclusive and monopolistic rights had ever been conferred upon the privates. This is a consequence of the system design in ancient China in which the political, economic and legal regimes were all devised around the“Kingship concept”, whereunder the political power had dominated the private land rights. Since no conception or tradition to respect the personal property rights had been formed throughout ancient China, accordingly such a system could not be generated. Now that the private land rights were throughout menaced by the public authority of the state, the content of such rights were incomplete and the status unstable. By combing through the system of land rights of farmers in China since 1949, the author makes an investigation of the shift of this system from private ownership to collective ownership and collective management to collective ownership and family management, with intent to uncover the process of formation of collective land ownership in China.By combing through the theories of private property, the foundation of legitimacy for the private property is justified from the viewpoint of the theory of human nature and the theory of natural law. In light of an inquiry into the motive in establishing the eminent domain of the state, it is demonstrated that the legitimate foundation for the state eminent domain lies in the possible achievement of public interests. The state eminent domain, which is exclusive in virtue of its sovereignty and is exercisable for the purpose of public interests, is a public power of the state to restrict or expropriate the property of the imposed subject with enforcement. The eminent domain of the state, however, has been thoroughly alienated into an instrument of encroaching on the farmers’land rights in contemporary China; the origin of alienation rests with the deviation of the idea of development, and moreover, the unreasonable design of the system turns the Government into the party with interests; then some effective approaches to restrict the state eminent domain are proposed here: goals of public interests, due procedure and just compensation.Based on a generalization of the concept and characteristics of public interests, and an analysis of the conflicts between the public and individual interests, the author holds that the tenet of settling the conflicts is to obey the supremacy of public interests, and then justifies the argument for this principle from the two aspects of the existence and development of community and of the purpose of public interests. Yet he also warns that this supremacy is in no way an absolute, universal principle without any restrictions, but some necessary restrictions shall be imposed on its application, lest it be abused. Primarily, such restrictions are to be effectuated by means of the proportionality principle, due procedure principle and just compensation principle. And then the author proceeds to inquire into the criterion and method of how to define the public interests. The criteria to define public interests is considered to include the beneficialness criterion, the publicness criterion, the criterion of direct, and substantial benefit for the public, and the legality criterion.As it is pointed out that China’s land acquisition system design does not reasonably deep, there are two fundamental reasons: the first is the value deviation occurred, the second is the inherent drawbacks of the system of the right to collective ownership of land. On this account, there must be a demand for a transition of the conception, viz., a shift from the excessive pursuit of economic development and emphasis on economic construction above all to full respect for and protection of human rights in the pursuit of economic development; and a shift from the national standpoint of state-centrism to the rights-based standpoint of appropriate promotion of individualism, hence to establish firmly the basic idea of safeguarding the rights of farmers, and On this basis, realization of reconstruction of the two systems, namely, reconstruction of rural land ownership system and reconstruction of land acquisition system, pointed out that the previous system of innovation is the way to solve the root of the problem of farmers ’ rights.Through a study of the two ancient systems of collective land ownership which respectively existed in Marc commune in Western Europe and in the villages in India, it is pointed out that the existence of these systems of collective ownership must have matched the specific economic and social bases, viz., in accordance with the relative backwardness of their production capacity, the system arrangement of primitive and backward. The analysis on the disadvantages of rural collective land ownership system in China are the phantom of the subject of title, the incomplete function and fuzzy feature of ownership,with the advancement of national ownership of inequality ,depriving the typical nature of title to reduce it to“quasi-ownership”, vulnerable to the violation by the public authority of the state, so as it is pointed out, this system with its inherent defects can be hardly perfected by way of modification from within. On the basis of a comparative analysis of a few chief reform schemes, the author puts forward a viewpoint that to establish a system of coexistence of a variety of ownerships with the farmer’s ownership as its mainbody should be accepted as the developing direction of the future rural land system in China; From many aspects to take its theoretical justification; based on the response to the queries from the opponents, the author proposes a preliminary assumption about the conditions to implement such a reform. Currently, proper conditions for hopeful reform are not available yet in China, but decades later, when it has become more democratic politically, the nomocracy construction has been promoted to a certain level, the urbanization has been boosted to a certain extent, the social security system has benefited all the farmers, andwhen the preposed or supporting reforms like the reforms of the household registration system and tax system have been generally in place, in a word, when all such conditions basically suffice, the proposed reform can be carried out with steady steps.To reconstruction of land acquisition must on the basis of upholding the farmers’rights standard .As to the choice of the public interests legislation mode, the author advocates choosing the mode of generalization plus enumeration, more specifically, he suggests a double enumeration pattern. With respect to the expropriation procedure system, he proposes establishing a public interests confirmation process, a negotiation-purchase process, and a right of retrieval system, and improving the processes for the participation of the imposed subject, and of hearing and relief. As for the expropriation and compensation system, he argues for the principle of fair compensation, with the expropriation agency as the compensation subject of duty and the farmers as the main subject of rights; he agrees to expand the scope of compensation, for other losses greatly suffered from the expropriation should also be counted in; the standard of compensation for the requisitioned land should be made on the basis of market price standard, supplemented by the standards of addition compensation and resettlement price; as concerns the compensation mode for land requisition, a system of compensation modes ought to be established that takes currency indemnity as the principle and non-monetary compensation or alternative remedy as supplementary.更多还原