法学研究

文章摘要

土地发展权的理论基础与制度前景

Theoretical Foundation and Institutional Prospect of Land Development Right

DOI：

英文关键词: land development right;land development increment;compensation for land expropriation;land management law

基金项目:

作者	单位
陈柏峰	中南财经政法大学法学院

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中文摘要:

征地纠纷的本质是各方对土地发展增益的争夺，土地发展增益在法律上表现为土地发展权。土地发展增益主要源于外力，是全体社会大众努力的结果，具体地块的发展增益与国家发展战略、城市规划、非农用地供应政策、城市化速度等因素密切相关。土地发展权并非土地所有权的派生权利，它因国家管制权的行使而成为一项独立的权利。我国的土地发展权国有模式具有一定的合理性，能防止少数人独享土地发展增益。其不合理之处在于，未能明确保障失地农民分享土地发展增益，且缺乏制度装置来让大田农民分享土地发展增益。我国应当坚持土地发展权国有模式，并通过完善具体制度来保障土地发展增益全民共享。

英文摘要:

The essence of land expropriation conflicts is to capture the land development increment, which is represented by the land development right, by the related parties. The Land Management Law of our country takes the mode that the state owns the land development right, which was questioned by the theory that the land development right derives from the land ownership. This theory is wrong. There are two different kinds of land's value increasing. One is the increment based on land itself, and the other is the increment based on other factors. The increment of the land development right is produced by the second kind, that is, it's the result of the hard working of the whole people. To be more exact, strategy of country development, urban planning, policies of supplying non-agricultural land, speed of urbanization and other relative factors have a deep influence on the value increasing of the specific land. The land development right is not the right derived from the land ownership, but the independent right due to the regulation of the public law. Nowadays, there are two main institutional modes of the land development right in western countries. One is that the state owns the land development right, which is represented by the UK, and the other is that the private owns the land development right, which is represented by the USA. There are great differences between the two modes, but they can both keep social fairness through making the minority not possess the increment of the land development right. The mode our country takes can avoid the minority to take the increment of the land development right, but it also has some disadvantages. The law has not made the landless peasants share the increment of the land development right clearly. And the institutional mechanism which gives the much-land peasants (cultivating peasants) access to share the increment of the land development right is still in need. Therefore, besides insisting that the state owns the land development right, the state should take exact and effective measures to make most peasants share the increment of the land development right.

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