【作者】 李相范；

【导师】 谢地；

【作者基本信息】 吉林大学 ， 法经济学， 2010， 博士

【摘要】 本文以法经济学为理论基础,以土地违法为切入点,采用多视角、多层次、多方法对中国当前土地违法现象的制度困境及其原因与出路进行了系统地论述。文章认为,当前中国土地违法量大面广,土地制度在遏制土地违法过程中效力缺失的现实说明了土地违法的实质是一种制度性违法。制度安排和制度结构对土地违法具有至关重要的影响,制度安排缺失正是土地违法行为屡禁不止的重要原因,无论是微观经济主体的土地违法行为,还是政府的土地违法行为,制度缺失都是土地违法行为产生的决定性因素,而这是由土地本身的经济属性与土地在中国的特殊作用决定的。这两种土地违法行为都是理性的微观经济主体或政府在给定制度安排下不断进行博弈的结果,是对土地违法行为进行成本——收益分析后的理性选择。土地违法的这种经济逻辑说明,遏制土地违法必须要从制度创新入手,遏制土地违法的出路在于通过制度创新改变博弈的结构,减少土地违法行为的收益,加大违法的成本。更多还原

【Abstract】 The land is bearing of human activity, land resources is the irreplaceable scarce resources on development of human society. At the present stage in China, because of the social growth of demand for land and scarce supply of land resources, the contradiction between a very prominent land law problem getting worse. Based on the current our country land offenses, through the economic analysis on the definition of the concept and the land offenses classification,we namede it institutional illegal of land , and use this concep , discussed the two typical types land offenses--microeconomic units land offenses and government land offenses , analyzed the economic logics of microeconomic units land offenses and government land offenses. And through the interpretation of the deep reasons behind the land offenses, was presented the countermeasures of curb land offenses and perfect the land institution.The first chapter from related theory and basic concept of land offenses and economic analysis tool. This thesis introduced the related law and economic theory, the theory of property rights, the rational choice theory, public choice theory, the theory of institutional changes, and the related concepts in the research of the land, land institutional, land property rights, land offenses behavior, government behavior in advance.The second chapter analyzed microeconomic subject land offenses With economic methods Microeconomic units land offenses include personal land offenses, legal and social organization land offenses. In the first place. This chapter from land resource scarcity and unbalanced supply and demand, discussed the basic reason of land offenses , unbalance of land supply and demand due to people to pursue their own interests and land resources, which produced for the land illegal behavior. Then, this chapter proved taht economic economical analysis is feasibility in microeconomic subject land illegal behavior. because microeconomic units of the land act strictly, it is not only a kind of legal act, and also is a kind of economic activity, it is drived by land. economic benefit.At the same time, through cost and benefits analysis of the microeconomic units land offenses behavior, this paper analyzed the the essence and the process of the microeconomic units decided making of land offenses behavior. Through analysis, we could see that the main land illegal behavior microeconomics in decision-making institution of land within the framework of the actor, through the analysis and judgment, decided not to implement illegal behavior, decided to implement illegal behavior and how to choose the best chance of implementing. At the same time, in order to better illustrated the subject in land market and whether to choice the illegal behavior, The author made a case analysis for the typical incident of land offenses.Although the root of microeconomic units land offenses is cause of interest driving in the land use by the individual through cost and benefit analysis– it is a rational decision. But China’s current microeconomic units land offenses is completely different from other illegal behavior, the regulation of land offenses is not limited to legal institution. Microeconomic units land offenses is not only individuals through the cost benefit analysis for the rational decision--and more deeply embedded in the land it is a social and political institution, legal institution and economic institution. the institution is the deep reason of microscopic economic decied to making of land illegal behavior , And these institution and involves a number of related government departments, this makes the microeconomic units land offenses behavior became a dynamic game. According the game analysis,This chapter demonstrated that the individual adopt non-cooperative game in current land illegal behavior choice, the land offenses control mechanism is a "prisoner’s dilemma"--on a strict regulation institution and measures, illegal behavior is high, and even these institution but entice or aggravate the illegal. The "prisoner’s dilemma" is the root cause of the relevant institution there still exist some defects or weak restrict, if the subject adopt to the cooperative behavior ,the payoff higher the various costs, and the probability of relevant supervision is low, the participation of land market of inducing behavior decision-maker opportunism behavior. Visible, microeconomic main land illegal largely is actually a kind of illegal, but to specific institutional predicament, get rid of this kind of illegal regulation most feasible solution is to change the law regulation game structure, i.e. change the rules of the game.In addition, this chapter also analyzed the phenomenon of by game theory through an empirical study of illegal building small property right house, further perspectived and demonstrated the institution logic of microeconomic subject land offenses.The third chapter analyzed the government land offenses with economic method. First, this chapter described the concept of institutional land offenses. For the subject, institution provides various incentive mechanism, opportunity structure and restriction mechanism, it can be ultimately affected people’s behavior of various action plan of the cost and benefits of calculation. subject behavior and the results will vary from the different institutional environment, and the difference come from restrict between the different institution structure. A remarkable characteristic of land offenses is land offenses is related to institutionalstructure, whether microeconomic units or local government, by the influence,they made a impulse and illegal behavior. The institution has the fundamental role of the behavior. Because in this set of institutional arrangements, subject of land illegal behavior is the maximum profit behavior choice, the choice is rationality. Institutional land offenses is because of unreasonable structure of institution or improper incentive in land market, above the series of institutional arrangement, in any society under the rational behavior subject will inevitably choice illegal, not strictly obey the law or inaction, because this law conforms to most people’s basic behavior expectations and humanity. In this institution arrangement, if you not illegal, you will reduce income is no income or even negative income.Secondly, follow the above, this chapter talked about the influence of government behavior accroding institution from government behavior motivation and behavior choice two aspects. The government’s behavior is closely related with the institution. The government is also a rational "economic man", and has established institutional framework in pursuit of his own benefit maximization, the behavior orientation of behavior selection is based on cost accounting, in particular the revenue Institution, Therefore, the institution can arrange for its positive incentive and restrict the government behavior selection decision. The government as the "economic man", if the reason existing in reality, a scientific and reasonable encouragement, restriction, regulating mechanism, will hold its illegal impulse, reduce its social harmfulness. Conversely, if the institution of incentive mechanism warps institutional arrangement, no effective or restricted and regulating function, the government could echo maximise returns to the motivation, induce the illegal acts or cannot be effectively restricts and standardize government illegal behavior. At present, China’s local government was faced this problem. A low efficiency and even without efficiency of land institution arrangement, will resulted negative influence in both the government behavior choice ,appear from illegal behavior. In reality, it can be divided into two kinds: one is the reverse incentive institution arrangement, one is weak restrict institution arrangement. The government behavior largely is a comprehensive selection of rationality under the institution. The government behavior by institutional environment restriction, government land illegal behavior is deeply embedded in the institutional environment. The institutional arrangements existing a reverse incentive mechanism, induce the government land violations, and existing weak restrict institutional arrangements for the government, provides conditions to government land illegal behavior or cannot produce due effect.Again, this chapter discussed the government land offenses meticulous. It is also the key of this research. The government land offenses has a profound reasons of the institution. Local government land offenses is one of the most typical institutional land offenses. From the institution itself and the realistic situation, the influence of the land act not only macroscopic institution arrangement, but also have the microcosmic institution restriction. Macroscopic institution environment refers to the cadre institution and taxation institution, microscopic institution mainly refers to the land property rights and management institution. they existen a reverse incentive mechanism and and weak restriction mechanism which lack of efficiency, this induce the government land illegal acts or cannot produce due effect.At present, under the cadre institution, fiscal and taxation institutions, the government is facing the institutional environment is the economic institution and political institution. Appointed tenure institution and the political institution examinational institution environment, make local government must develop economy development, in order to obtain political achievements, the simplest way of project, is do some project that can see benefits "short, flat, quick"easily, under this motive, many local governments chose land offenses. The separation of the taxation institution under the environment of economic institution, changed the government’s role position , local government has become an independent stakeholders. This makes the local government in promoting local economic development, the increase in GDP to expand financial income as a priority work, and the illegal activities of land became more and more serious.In the land property rights institution and management, the current land institution arrangement firstly was a "government monopoly" institutional arrangements. The government is the leading role on the allocation of land resources. Tt is provided convenience for local government to pursuit revenues, display achievements and illegal behavior of land utility maximization. At the same time, the existing institution is a kind of "soft restrict" institution arrangement. The probability of punished because of Local governments land offenses is very low. In the existing laws and regulations, the criminal offenders to be punished is very hard. In the responsibility, existing the problem of insufficient restrict, In land management institution, the existence of the problem is the effective supervision, in the examination and approval procedures , there are some problems,such as need too much material, too long time, and usede land befor promissed. In addition, the current land management institution is a kind of "weak protection" institutional arrangements, it not only embodies in the institution of the entity, also reflected in the procedure, that to stimulated the government land illegal behavior from the reverse side. owing to the interests drive, weak punishment for local governmen illegal, local government financial difficulties, the administrative management institution and the land transfer institution was not perfected and land tax institution was unreasonable , etc, With the addition of land administrative law was imperfect, In the combined action of the macro economic and political institution which reveal reverse incentive mechanism and weak protection of land institution, the local government land illegal behavior can be fully, and gradually became an institutional illegal. In order to better and more intuitive perspective local government land illegal behavior, this chapter used a large number of cases, and analyses the case in detail, Also we choiced the phenomenon of land offenses in non-agriculturalization of farmland , used game analysis methods to analyed the selection of local governments, and further empirical research, demonstrated the relevant institution structure of government land offenses, thus reveals the essence of land offenses is an institutional illegal.Based on the above research, this thesis put forward several Suggestions to curb land offenses, Perfect the land institution. Due to the land offenses has become a kind of institutional illegal, contain this illegal behavior is not only need to constantly strengthen local government land illegal case investigation dynamics, more important is to perfect the law institution, reform the macro economic and political institution and land management institution. So, if we want to solve land offenses problem, we must be through institution innovation to improve the existing institutional incentive and restrictive mechanism. It is the most fundamental and simple method, on the one hand, reducing incom by land offenses , thus weakening illegal behavior of internal power, on the other hand, increase the cost of land offenses, make the subject unwilling and not dare to illegal. From the perspective of economics, we should be reform or improved institution from following aspects: firstly , improve the legal institution , fill institution vulnerabilities, second, perfect the institution of political examinational and perfect incentive mechanism, thirdly, reform the taxation institution, weakening of the local government internal power by land offenses, fourthly, establish and perfect the mechanism of the land market, fifth, strengthen the farmers’ land rights, improve requisition procedures, sixth, deepening the reform of the management institution of land.The main innovation of this essay mainly reflected in the following aspects: first, used the method of economic analysis, expounds the cost structure of land offenses and efficiency evaluation systematically, and proposed an effective institution innovation suggestions, especially, the interpretation of institutional illegal is a new trial of institutional analysis to land offenses. Second, based on the realities and the institutional environment in present china, it has an important reference value for the policy to made the institution arrangement probes into curb the land offenses. Third, in the methodology, this thesis combined the research methods of cost--income, game analysis, case analysis and institutional analysis, especially through the empirical research and case analysis, it had some effect to the research of china’s land management institutional through law and economics.更多还原