Study on the Modernization of Collective Land Expropriation System

趙天

Abstract：Through the discussion of the compensation standard，the use of the expropriation right and the supervision and remedy approaches as three outstanding aspects in Chinas collective land expropriation system，the author discovered the main defects of the system embodied on an institutional level are：low compensation standard，abuse of the expropriation right in the absence of effective supervision power，and the scarcity and inadaptability of remedy approaches.In order to prevent group events from frequently taking place in collective land expropriation and improve the modernization level of governance capability of the country，the thesis has put forward some related suggestions for the system based on the comparison and learning of relevant foreign systems.

Key Words：collective land expropriation；compensation standard；expropriation right；remedy approaches

Nowadays，with the rapid development of modernization，land has become both a resource and a power for the country and the peasants.And land expropriation system is regarded as an important bridge to link and balance the nation-building activity and the profit of peasants.However，as far as I observe，the current expropriation system of our country is lagged far behind the modernized management system of the country，with defects exposed in the following aspects.

1.Modernization of the Management and Control of Government Expropriation

（1）Too much emphasis was put on the government leadership in the land expropriation process，deviating from the modernized management system

It has been a long-term practice in China to place administrative powers in dominant positions.In order to accelerate the social modernization developing process，when it comes to land expropriation issues，the state power blindly holds to the opinion that all the decisions made by it are consistent with the public interest.Under such preconditions，common occurrence of blind and illegal land requisition activities has caused extremely bad impact on the society.The improper deeds of the government in using land expropriation right are mainly embodied in the following aspects：

（a）Attaching too much importance to the work performance and achievements in the official career and covering up the illegal expropriation deeds in the name of maintaining public interest.Guided by the misunderstanding of political achievement concept and the cadre assessment results，most local government have ignored the fact that the essence of the modernized development of society is not only about economic development，but also contains the concepts of sustainability and human rights protection.All the damages caused to the society and the peasants by the various illegal expropriation deeds resulted from such “ignorance” and the blind development concept of ignoring the benefit of the masses are more than severe.

（b）The over-mighty power of the administrative bodies resulting in the self-supervision existing in name only.According to the provision of Clause 45，Land Management Law，the expropriation approval right belongs to provincial governments and the State Council.But due to the redundancy and complexity of administrative structure of our country，and the fact of loose enforcement of law，supervision to such approval process only exists in name.On one hand，the government applies the right to expropriate；and on the other hand，it takes advantage of such right to obtain high fiscal revenue.The dual identity will surely result in invalid enforcement of the supervision power.

（c）Neglecting the rights and needs of the expropriated and repelling to include the expropriated in the expropriation process.Despite the provision of Announcement Process in Clause 46，Land Management Law，no substantial influence was ever made on the consequential execution of expropriation right.Besides，the announcement is usually put up there to urge the expropriated to register，rather than to listen to the opinions of them.In the actual expropriation process，especially in expropriation with a commercial development purpose，the local governments often act evilly in collusion with the developers，granting certain formal right to speak to the peasants while neglecting any requests proposed by them，which imposes no impact on the original expropriation deeds and the continuous execution of the same.

（2）Elaborating on the allocation and restriction of expropriation right of government in other countries

（a）Under the federal regime system of the United Sates，the Congress used to have the exclusive power to land expropriation；but with the continuous social development afterwards，conditional authorization to execute expropriation right began to be granted to other organizations.The conditions included：specific authorization instead of general authorization shall be made to each expropriation item；the object shall be a specific piece of land；expropriation shall be made based on public interest；the remedy approaches shall be approved by the Congress.At the same time，the whole expropriation process shall be supervised and examined by the court in both entity and process.Once the court believes that the expropriation deed is defective，then the expropriation decision made by the Congress will be regarded invalid as a violation of the Constitution.As for the distribution of rights during the land expropriation execution process，the expropriation deed of the federal government shall be separated from that of the state government according to their own needs.But governments on both levels shall put public interest in the first place as the premise of expropriation.Therefore，all the land expropriation process can be restricted legislatively and judicially，reducing the possibility of governments making profits by abusing the expropriation right.

（b）France，as a country ruled under civil law system，empowers the legislative body with the right to make and amend relevant laws and regulations during the land expropriation process，and grants the expropriation execution right to administrative bodies.But quite clear restrictions are made to the bodies with approval right，limiting it to the Prime Minister，the Ministers and the Governors of each province.In principle，only administrative bodies have the right to apply for initiating land expropriation process，and application from the other bodies are strictly limited.The main function played by judicial offices is to conduct investigation to see if the expropriation purpose is consistent with public interest or not.In the ownership transfer process as the most crucial part in expropriation，the administrative bodies shall first give out approval，and hand it over to judicial bodies for confirmation in the form of verdict.In the event of failed consensus on remedy agreement，the court shall be responsible for making judgment.

（3）Suggestions to make the expropriation execution right and expropriation supervision consistent with the requirement of modernized governance

（a）Clarifying the definition of public interest，restricting the abuse of expropriation right in the name of public interest from the source.Currently，public interest is defined in Clause 54 of Land Management Law and Clause 48 of Property Law in our country.However，due to the theoretical nature of the definition，the operability is quite low.Therefore，the author would suggest to define public interest in four steps：firstly，the concept of public interest shall be clearly defined by law；secondly，the legal provision shall expressively list out cases by category that are applicable for public interest in the form of examples；thirdly，other situations that are also applicable for public interest shall be summarized in miscellaneous clause to adapt to new needs of modernized social development；lastly，situations that shall not be regarded as public interest shall be included in exclusion clause.In this way，a complete set of legislation model for defining public interest can be thus formed.①

（b）Compared with the investigatory model by legislative and judicial bodies in other countries，the National Peoples Congress and its standing committee have played no role in land expropriation，and the court has either conducted any judicial investigation on it.Therefore，given the currently frequent occurrence of land expropriation activities，the National Peoples Congress and its standing committee shall temporarily retrieve the legislation right related with land and accelerate the amending process and interpretation of Land Management Law，eliminating from the legal aspect the breeding ground for the abuse of administrative rights.At the same time，through the amendment to relevant provisions in Civil Procedure Law，the administrative deeds in the land expropriation process can be included in judicial investigation，eliminating from the judicial supervision aspect the possibility to abuse the administrative power.

（c）Strengthen the interest expression mechanism for the expropriated.At the early stage of expropriation，it shall be specified in law to clarify the notification obligation of the expropriation applicant as well as the consequent liability，if the obligation is not properly performed.If the expropriated have any dissent to the expropriation details，a hearing shall be hold.Also，it shall be specified in law about the specific situation where the hearing is applicable，the presiding organization，relevant participant，and the hearing procedure，so as to restrict the abuse of the expropriation right，improve the efficiency of hearing and protect the interest of the peasants.

2.Modernization of the Remedy Standard in Collective Land Expropriation

（1）The Current Collective Remedy Standard of Our Country and Its Defects

The current collective land expropriation remedy standard is mainly based on the provision of Clause 47，Land Management Law.And no conclusion has been reached so far about the suggestion to delete the upper limit of 30 times remedy standard from Clause 47 in the amended Land Management Law which has attracted great social attention before long.The present legal remedy standard is still disassociated with the real market price of land，and is deviated from the economic development situation.Besides，it cannot fulfill the expectation of the peasants to get economic compensation for the expropriated land，and fails to alleviate their unease after losing the land.As a result，frequent occurrence of group event has been witnessed by the society，hindering the process to achieve the goal of modernization of governance in our country.

The main defects of our current legal provisions on land expropriation remedy standard are embodied in two aspects as follows：

（a）The strong central planned economy featured provision of “three-year average amount” can not reflect the real market price of the fixtures on land today.Neither does it reflect the potential for appreciation on the land after the ownership is transferred to the country.Whats more，the provision that allows cities to set different remedy standards according to the Land Management Law in Clause 47，Land Management Law，has resulted in various remedy standards，giving rise to problems as skimping the remedy fees to the peasants.

（b）The provision of setting “30 times upper limit” only takes into consideration the original purpose of use of the farm land，while neglects other factors，such as the location of the land，the supply and demand relation，the purpose of use after expropriation，and the employment and social security of the expropriated.

（2）Elaboration on the Remedy Standard of Other Countries

（a）Based on the equal and fair remedy principle，the United States has established equivalent compensation system as the remedy standard by using the market value of the expropriated assets as the criteria for valuation.②During the remedy procedure，the expropriated must be fully compensated，but they are forbidden to unreasonably ask for additional economic profit beside what they are granted by laws and regulations.Afterwards，the US courts and legal cases mainly drew on the equal market value standard as the main basis to make judgment on expropriation remedy related cases.However，in the judicial practices later，many scholars proposed objection to the standard.Because whether the market value standard can fully embody the accurate true value of land，as irreplaceable rare resource，remains debatable.

（b）Judging on the market value of land，Germany adopted full coverage of compensation standard as the remedy standard，which is known by scholars as “double compensation”.③Under such standard，the expropriated will be compensated with the value loss of the expropriated land itself and other economic losses suffered by the expropriated due to the expropriation.In practice，the remedy standard is subject to the official market value published by the local government where the land is located.Whether this standard can make reasonable valuation depends on whether the living needs of the expropriated after relocation can be firstly met or not.In urban development zone projects，the standard remedy price is the price of the day when the expropriation is announced to the public.The appreciated value shall be owned by the nation to prevent speculation activities by any businessman in the name of public interest.

（3）Suggestions to make our remedy standard consistent with the requirements of modernized governance

From what stated above，we can see that most countries in the world adopt market value as the remedy standard with detailed regulations and researches.Therefore，the Land Management Law of our country shall also follow the trend of the time by making relevant modifications and setting the market price as the basis with consideration of different local situations as supplement，so as to amplify the remedy standard.

（a）Set the goal of restoring the original living standard of the expropriated as the fundamental guiding ideology，and include into consideration of the daily life，employment，relocation and social security of the expropriated.With such remedy standard as the most basic standard，which is similar to the restore the status quo ante principle in civil law，the expropriated peasants can get greater economic profit from the expropriation.Besides，their living standard will not go down because of the expropriation，thus reducing the possibility of causing land expropriation disputes.

（b）Cancel the average output value multiple calculation method and take the market value as the standard.No unified standard shall be applied to the value of land；instead，it shall be set based on the consideration of the local economic development situation，the quality of the land，and the purpose of use of the land after expropriation.Therefore，the author suggests that the it shall be regulated in law a three-level gradient remedy standard：the first level is the lowest market value remedy standard applicable for nationwide situations；the second level is the lowest market value standard set by each provincial，autonomous regional and municipality government based on the local economic development status according to the Land Management Law，applicable to local situations；the third level is the lowest market value standard set by city and county governments on the basis of the provincial governments standard，applicable for local situations.At the same time，it shall be required that the government remedy standards shall gradually increase from bottom levels to up levels of governments.As for the fixtures on land，the remedy shall be mainly considered on the buildings.The author believes that according to the provision of Clause 19，The Expropriation and Remedy Rules of Houses Built on State-owned Land，the remedy standard for the expropriated buildings shall not be lower than the market price of similar real estate on the day when the expropriation is announced to the public.Only by adopting such standard can the market value be fully embodied in the remedy.

（c）Establish the collective land market value evaluation organization.In foreign countries，the evaluation organization is usually selected upon the negotiation and agreement of both parties during the expropriation.But at present，there is no authorized evaluation organization that can evaluate the market value of lands in our country.Therefore，the author believes it necessary to establish a neutral social evaluation organization regulated with legal rules.It shall have the right to determine the date for evaluation.And in doing so，the author suggests to adopt the date calculation method of the UK，and set the day when the government expropriates the land as the day for value evaluation，which will not only prevent any speculation activity of the expropriated，but also guarantee the legal rights of the obligees.

3.Modernization of the Remedy Methods for the Landless Peasants

（1）Existing Defects of the Remedy Methods for Landless Peasants

The features of the existing plenty of group land expropriation dispute events are mainly shown in the conflict between the individual and the government，including disputes caused by the inaccurate defining of public interest，disputes due to low remedy standard，and disputes arising out of illegal expropriation processes.On the current stage，the remedy measures for disputes arising out from collective land expropriation events is one in a million in our country，lagging far behind the requirements of modernized governance.The existing defects are mainly embodied in：

（a）From the perspective of administrative coordination and adjudication，it is clearly regulated in Clause 25 of the Implementation Rules of Land Management Law.④But obviously，certain applicability is missing from the provision：firstly，“peoples government above county level”，both as the body to execute the expropriation and as the decision-maker to set the remedy standard，is also the judge to resolve disputes thus caused，which results in unfairness with the three roles in one；secondly，as the main organizations that authorizes land expropriation acts are provincial peoples government and the State Council，the threshold of application for adjudication is comparatively too high for common people，bringing numerous troubles to the peasants when they try to protect their own rights；thirdly，the existence of the disputes has no actual influence on the execution of expropriation，leading to the result that the coordinating process lasts longer than the expropriation process.If the expropriated wants to further the process in order to protect his/her legal rights，he/she will encounter with many difficulties.

（b）From the perspective of administrative review，it is stipulated in Clause 30 of Administrative Review Law and Clause 25 of Implementation Rules of Administrative Review Law that when the expropriated refuses to accept the expropriation result in practice，they can only submit application to provincial government or the State Council for administrative review；the review result is final and cannot be appealed.In this way，the expropriated is deprived of the possibility to protect their legal right through judicial procedures.

（c）From the perspective of judicial procedures，no objection can be brought up against the expropriation decision，while no provision in the Administrative Procedure Law stipulates whether the objection to remedy standards can be appealed against.Furthermore，it is stipulated in Clause 10 of Provision on Several Questions Regarding Administrative Cases in Countryside Collective Land Expropriation Process By the Supreme Peoples Court，if the obligee，who has any objection to the remedy methods adopted by the land management organizations during the implementation process，directly brings suit to the peoples court，and the peoples court denies the appeal，then the court shall inform the obligee to firstly go through administrative review process for adjudication.However，in Clause 25 of Regulations on the Expropriation and Remedy of Houses Built on State-owned Land，it is stipulated that after the conclusion of a remedy agreement between the expropriating authority and the expropriated party，if one party fails to perform its obligation of the agreement，then the other party shall have the right to bring suit to the court.Now we can see that different legal regulations are provided regarding the same situation，which is quite confusing.

（2）Elaboration on the Land Expropriation Remedy Methods of Other Countries

（a）The US has developed comparatively mature and complete remedy methods for expropriation.During the stage to define public interest，if the expropriated believes that the administrative body abuse the definition of public interest，then the administrative body must hold a hearing；if the administrative body fails to provide a reasonable explanation，then the court has the right to dismiss the expropriation application.If the court believes that the administrative body has rightful reasons，while the expropriated holes different views，he/she has the right to appeal to a superior court，and the federal Supreme Court will make final judgment.What needs to be clarified here is that the definition of public interest made by the court in individual cases is based on the laws made by the Congress regarding relevant situations；the judge himself/herself cannot make judgment based on his/her own understanding.If there is any objection to the remedy standard，the expropriated shall have the right to ask the court to set up a jury or organize an evaluation committee to re-evaluate the remedy standard according to different provisions in different states.If the expropriated is not satisfied with the decisions of the two bodies，he/she shall have the right to appeal to a district court.During the litigation process，the execution of expropriation shall be ceased，unless otherwise needed in special public construction projects.

（b）In UK，the function played by the Congress in expropriation reliving is embodied in its control over the relevant legislation right on land and its definition of public interest.UK has a unique organization called Land Tribunal which is an organization specially established to resolve land-related disputes as such cases become more and more complicated.The distinguishing feature of the tribunal lies in its independency as a remedy organization with judicial characters.In deciding upon expropriation related remedy standards，the main functions of the tribunal include：reviewing disputes over land evaluation，resolving disputes over land expropriation remedy，deciding upon the appealing right in land related cases，making judgment on the ownership of land related assets，etc.⑤As for the way of dispute resolve，it adopts the form of hearing.Thus，on the one hand，the expropriated can be provided with the most effective remedies；and on the other，the court can be relieved of such work load.

（3）Suggestions to Make the Remedy Methods of Our Country Consistent With the Requirement of the Modernized Governance

In addition to learning from the valuable experience of other countries and their remedy methods and plans，we shall also notice the specific situations faced by our country：we are at the stage when modernization is under fast development；land expropriation events take place frequently；the legal knowledge of the people is comparatively weak；and our judicial resources are distributed in an unbalanced way.Therefore，the author suggests the following point to enhance the existing remedy methods：

（a）Under the premise of keeping government coordination on priority，set clear limitations on the various meditating aspects including application procedure，handling process，execution process，meditating period，etc，to strengthen the pioneering role played by government meditation as a remedy method.As for the force of the meditation，it can refer to the provisions in Civil Procedure Law：upon the recognition of the two parties and with confirmation from the court，the meditation shall have the same effect with court decisions.

（b）Administrative remedy shall fully play its function to mitigate and meditate.

Regarding administrative adjudication，firstly，we shall expand its applicable scope.In addition to the existing remedy problems stipulated by law，objection to expropriation procedures can also be resolved through administrative adjudication；secondly，we shall simplify the procedure to initiate administrative remedy and expand the subject scope to allow more applicants to have access to administrative adjudication and ensure the practical execution of rights by the expropriated；lastly，we shall make administrative adjudication a necessary procedure to go through to initiate judicial remedies，saving the last line of defense for the expropriated to fight for remedy.

Regarding administrative review，firstly，the author has mentioned in the foregoing paragraphs the administrative review process in our existing laws for objection to the expropriation itself，which allows no appeal to the review results due to the limitation on administrative levels.Therefore，we shall develop the judicial remedy channels as supplementary factors to administrative review to weaken the political complexion of the latter.Also，some scholars suggested land infringement liability mechanism which allows the expropriated to directly bring up administrative litigation or civil litigation based on the different natures and status of infringing party in land expropriation.⑥Secondly，during the administrative review and administrative adjudication period，the expropriation process shall be suspended.Relevant reference can be made to the US practice，excluding special public construction projects as Principle of Exclusion.In this way，the land ownership of the peasants can be properly protected.

（c）Use the judicial remedy as the last line of defense to fully deploy the final and public credibility powers of the judicial adjudication.Firstly，we should define the applicable scope of judicial remedy，for example，what public interest is，how to make judgment on objection to the remedy，and what procedures shall be gone through in illegal expropriation.Also，once the illegal deeds are confirmed，the decision to conduct the expropriation shall be retrieved.Secondly，we shall relax the restriction on identifying the plaintiff qualification.Due to the fact that the land belongs to collective group in current land system，only representatives of the group have the right to bring up a suit，which usually gives rise to the situation in which the individual peasants are replaced by the group.Therefore，individual peasants shall also be granted with the right to bring up litigations.And thirdly，we can adopt the litigation suspending execution system，including the Principle of Exclusion in Clause 44 of Administrative Procedure Law.Lastly，we can try to establish an infringement liability mechanism in land expropriation.As the damages caused in land expropriation are usually hard to be restored to the original status，the expropriated shall have the right to ask for national compensation after the court decides to retrieve the expropriation decision.Thus，the reckless actions taken by the governments can be effectively restricted，and the expropriated can get reasonable economic compensation.

4.Conclusion

Nowadays，with group events regarding land expropriation taking place frequently，posing challenges to the social governing capacity of our country，it is quite necessary to establish an improved collective land expropriation system，as a crucial part to reach the goal of modernized governance.The collective land expropriation system that fits well with our current social and economic development situation shall comprehensively integrate the rule by law principle，the right and obligation operating models of administrative bodies，the judicial system，and the current property ownership situations into the system itself，and set out specific provisions by learning from the experiences for development of other countries

Bibliography：

[1]Implementation Rules of Land Management Law

[2]Olson V.United States[1934]（REPORT NAME）

[3]Chen Yadong：Thinking on the Expropriation Remedy to Peasants From the Legal Perspective，Academic Journal of Chongqing Technical College，Social Science Section，Second Issue of 2005

[4]Cui Jianyuan：Research on the Legal Problems Caused in House Demolition and Relocation，Page 85，2009 version，Pecking University Publication.

[5]Ding Wen，Wen Shiyang：Study on Land Expropriation Infringement Liability，published in Zhejiang Social Science，Issue 1，2006

[6]Zhong Jingtao：Dispute Resolve System of UK Land and the Inspiration，published on Henan National Land and Resources，Issue 5，2005.

注釋：

①Chen Yadong：Thinking on the Expropriation Remedy to Peasants From the Legal Perspective，Academic Journal of Chongqing Technical College，Social Science Section，Second Issue of 2005

②The standard was first established in Olson V.United States case in 1934，in which the court made the judgment to restore the economic status of the expropriated to its original state before expropriation.The obligee shall be fully compensated，but shall not ask for any additional remedy.

③Cui Jianyuan：Research on the Legal Problems Caused in House Demolition and Relocation，Page 85，2009 version，Pecking University Publication.

④Clause 25 of the Implementation Rules of Land Management Law：Disputes over the remedy standard shall be coordinated and resolved by local governments above country level；if no result can be achieved，it shall go to the Peoples government that authorizes the expropriation action for resolution.The implement of the land expropriation plan shall not be affected by the disputes over the expropriation remedy and relocation.

⑤Zhong Jingtao：Dispute Resolve System of UK Land and the Inspiration，published on Henan National Land and Resources，Issue 5，2005.

⑥D(zhuǎn)ing Wen，Wen Shiyang：Study on Land Expropriation Infringement Liability，published in Zhejiang Social Science，Issue 1，2006