Analysis of the problem of state-owned farm land being recovered by the government in China

【Abstract】 State-owned farm is an important state-owned agricultural economic organization in China, which plays a significant role in the development of China's agricultural economy. With the development of economy, the state-owned farm land has been recovered by the government, but there is a lack of laws and regulations specifically for the government to recover the state-owned farm land, which leads to many problems in practice and damages the legal rights of state-owned farms and farmers. The author attempts to analyze the problems related to the government's recovery of state-owned farm land under the current legal framework, and puts forward some opinions and suggestions.

Key words: state-owned farm land recovery

State-owned farms are agricultural economic organizations invested by the State and whose main means of production and products are owned by the State. It is a special product formed in a specific period of our country. In the vast rural areas of China, it has made brilliant achievements in the planned economy period and has become a representative of the advanced productive forces in rural areas. The land of state-owned farms is the basic means of production for the economic development of state-owned farms and an important part of state-owned assets. State-owned farms are dominated by agricultural production. Under the current market economy environment, the proportion of agricultural social output value is also getting smaller and smaller. Since my country's accession to the WTO, agriculture has been impacted to a certain extent. The net income of agriculture is relative to industry. It is very low. Although the country has taken a series of measures for the land resources with more people and less land in our country, it has not fundamentally changed.

With the needs of national economic construction or local public welfare construction, the recovery of state-owned farm land continues to appear, but the current law does not have specific provisions on the recovery of state-owned farm land use rights, and there is no common method in various regions. On the basis of the current relevant laws and regulations in China, this paper attempts to study and analyze the procedures and compensation of state-owned farm land recovery by the government.

Basic Types of State Farm Land in 1.

The land types of state-owned farms can be divided into the following types: 1. State-owned construction land. Since the establishment of the farm, state-owned farms have carried out a large number of production and construction, forming a certain amount of construction land, which can be divided into industrial construction land, commercial construction land, land for public welfare undertakings and residential land. Among them, industrial and commercial construction land refers to the assets of various subordinate enterprises in state-owned farms, and the more common ones are grain processing enterprises, enterprise repair factories and supply and marketing cooperatives. In order to adapt to the development of the market economy, many of these enterprises have been restructured and transformed into private enterprises. Their assets, including land, are no longer owned by state-owned farms. Only some of the large-scale ones with good benefits have not been restructured, and their assets still belong to state-owned farms. Land for public welfare undertakings includes land for farm infrastructure, hospitals, schools, etc. These infrastructure are assets accumulated since the construction of the site, and their ownership remains with the State farm. 2, state-owned agricultural land, divided into cultivated land, woodland, grassland and other types. Among them, cultivated land is the main type of agricultural land, and agricultural land is the main asset of state-owned farms and an important part of state-owned farms. 3, state-owned unused land, divided into grassland, sand, which in the state-owned farm land type occupies a certain proportion. Among the three land types, the proportion of cultivated land in state-owned agricultural land is the largest.

Conditions and procedures for the resumption of land on 2. state-owned farms by the government

Based on the provisions of laws and regulations such as the Land Management Law, the Urban Real Estate Management Law, and the Interim Regulations on the Assignment and Transfer of Urban State-owned Land Use Rights, the conditions for the recovery of state-owned farm land by the government mainly include the needs of national economic construction and local public welfare construction. Needs, public interest needs, urban planning needs for old city reconstruction, etc. The procedures for the resumption of land on State-owned farms by the Government include the following,[①]1. To draw up a recovery plan, the land administrative department shall, in accordance with the documents approved by the municipal or county-level people's government to adjust the land use, draw up a plan for the recovery of state-owned land use rights, and notify the original land use right holder of the proposed recovery of state-owned land use rights, and inform the right to a hearing. 2. If the land use right holder requests a hearing, it shall submit it to the land administrative department of the people's government at the municipal or county level within a certain period of time after receiving the notice of recovering the state-owned land use right. After receiving the application for hearing, the land administrative department shall organize the hearing within the time limit specified in the "Provisions on Land and Resources Hearing. 3. For approval, the land administrative department shall, within a certain period of time after organizing the hearing, submit the proposed plan for the recovery of state-owned land use rights, together with the results of the hearing, to the municipal or county-level people's government for approval. 4. According to the plan for recovering the right to use state-owned land approved by the people's government at the municipal or county level, the land administrative department shall, within a certain period of time from the date of approval, issue the "decision on recovering the right to use state-owned land" to the original land use right holder, and inform the original land use right holder of the right to apply for reconsideration and bring a lawsuit. If you are not satisfied with the decision to recover the right to use state-owned land, you can apply to the higher administrative organ or the people's court for administrative reconsideration or prosecution within a certain period of time (generally 60 days in accordance with the provisions of the Administrative Reconsideration Law) after receiving the decision to recover the right to use state-owned land in advance. 5. Cancellation of registration. After the land administrative department issues the "Decision on the Recovery of State-owned Land Use Rights", the original registration and issuance authority will cancel the land registration, recover the state-owned land use right certificate, and issue a notice on the recovery of state-owned land use rights. 6. Compensation, the opinions of the Bureau of Land and Resources and the Ministry of Agriculture on strengthening the management of land use of state-owned farms clearly stipulate that the economic compensation for the recovery of land use rights of state-owned farms in accordance with the law shall be calculated with reference to the compensation standards for the expropriation of farmers' collective land.

The principle of compensation for the recovery of state-owned farm land by the 3. government

At present, China has not issued special provisions for the recovery of state-owned farm land use rights compensation, the existing laws and regulations are mainly based on:

1. Article 58 of the Land Management Law stipulates that if state-owned land needs to be used for the public interest and the reconstruction of the old urban area of the city, compensation shall be given to the land use right holder.

2. In 2001, the "Opinions on Protecting the Legal Rights and Interests of State-owned Farm Land" jointly issued by the Ministry of Land and Resources and the Ministry of Agriculture clarified that if it is necessary to occupy state-owned farm land for construction, it should go through the approval procedures in accordance with the law, and provide compensation and resettlement.

3. In response to the application of the people's Government of Shuozhou City, Shanxi Province, the General Office of the Ministry of State-owned Resources and the General Office of the Ministry of Agriculture have made it clear in a reply to the "opinions of the Ministry of Land and Resources and the Ministry of Agriculture on strengthening the Management of Land use of State-owned Farms", that is, the recovery of agricultural land from state-owned farms should be compensated in accordance with the compensation standards for the expropriation of rural collective land. The compensation for the recovery of agricultural land on state-owned farms is divided into land compensation fees, resettlement subsidies, compensation fees for young crops and ground attachments, and the specific compensation standards shall be set by the local authorities themselves. The land compensation fee shall be given to the state-owned farm, and the agricultural workers who contract the agricultural land of the state-owned farm for a long time and use it as the main source of production and life, and seek employment by themselves and terminate the labor relationship with the farm after losing the land, the resettlement subsidy shall be given to the individual, but the state-owned farm shall rearrange the employment post, and the resettlement subsidy shall be given to the state-owned farm. For the above-ground attachments and seedling subsidies, compensation shall be given in accordance with the principle of "who invests, who gets. Such an explanation clarifies the principle of compensation for the recovery of state-owned farm land and the expropriation of collective land.

There are two reasons for this principle. One is that state-owned land is usually located in cities or suburban areas, while the land of state-owned farms is distributed in rural areas, just like collective land. Moreover, the essential characteristics of state-owned farms engaged in agricultural production are consistent with those of rural areas. Although state-owned farms represent advanced productivity and lead the development of rural economy at the beginning of their establishment, the land management system of state-owned farms is also deeply influenced by rural areas. Second, my country has relatively many regulations on compensation for the expropriation of rural collective land, and various localities have also formulated corresponding compensation methods for their own characteristics. There are also many lessons and references for the recovery of state-owned farm land.

First of all, the land compensation fee is the compensation for the loss of the land owner's income. The essence is the compensation for the land ownership. When the rural collective land is expropriated, the land compensation fee belongs to the rural collective economic organization. When the state-owned farm land is expropriated, although the state-owned farm land is owned by the state, the state-owned farm has the right to occupy, use and profit the land compensation fee belongs to the state-owned farm. The standard of land compensation is not determined by the market, but by laws and regulations. China's "Land Management Law" and other laws clearly define the standard of land compensation fees. On the basis of the land management law, specific standards have been set according to the local economic situation. There are two methods for calculating land compensation fees: the multiple of output value method and the comprehensive land price method. The output value multiple method is the calculation method of land acquisition compensation stipulated in the law of our country, and it is also a method commonly used in various places for a long time. The district comprehensive land price method is a new method that has emerged since 2004 to address the problems in the practice of land acquisition compensation. This method fully considers the potential use value of the expropriated land, effectively avoids the one-sidedness and irrationality of the calculation compensation standard of the output value multiple method, protects the interests of farmers, and is easily recognized by the majority of farmers. Taking Hebei Province as an example, in the "Hebei Province Land Management Regulations", there are clear provisions on the compensation standards for cultivated land and other agricultural land and construction land other than cultivated land, as well as unused land. In the latest compensation standard for land expropriation in Hebei Province, all regions have completed the determination of the price standard for the expropriation area. The price for the expropriation area is divided into 9 grades. The average price for the whole province is 35851 yuan per mu: among the 11 districts and cities, the highest is Shijiazhuang 49420 yuan per mu and the lowest is Zhangjiakou 28521 yuan per mu.[②]In practice, the land price compensation measured by the comprehensive land price method is generally 20% higher than that of the output value multiple method.[3]

Secondly, resettlement subsidies, long-term contracting of state-owned farm agricultural land and use it as the main source of production and life of agricultural workers, after losing land to find a job and terminate labor relations with the farm, resettlement subsidies to individuals; but by the state-owned farm to re-arrange jobs, resettlement subsidies to state-owned farms. The resettlement subsidy is calculated by legal limit, which has nothing to do with the location of the land, the level of regional economic development, the transaction price of the land market and the per capita arable land area and other factors affecting the value of the land.[4]The "Land Management Law" stipulates that the resettlement subsidy standard for each agricultural population that needs to be resettled is 4 to 6 times the average annual output value of the three years before the farmland is expropriated. However, the maximum resettlement subsidy per hectare of expropriated farmland shall not exceed 15 times the average annual output value of the three years before the expropriation. In practice, some areas have stipulated the minimum compensation standard, some places have stipulated the standard amount of resettlement subsidy, and some areas have clearly stipulated and announced the comprehensive land price of the area. If it has been clearly stipulated that the comprehensive land price of the area includes land compensation and resettlement subsidy, and the resettlement subsidy is not listed separately, it is no longer necessary to calculate the resettlement subsidy cost.

Finally, in accordance with the "Land Management Law" and other laws and regulations, the compensation standards for attachments and young crops on the expropriated land shall be stipulated by the provinces, autonomous regions, and municipalities directly under the Central Government. Therefore, in the compensation for land acquisition, the compensation for ground attachments and seedling fees should be calculated in accordance with the standards set by the local regulations. Since the actual economic value of the attachments and seedlings on the expropriated land can be estimated, for areas where compensation standards have not been established, compensation can be made according to their actual value after evaluation by a professional evaluation agency as a third party.

In practice, however, the principle of compensation for land recovery from state-owned farms is far from being as simple as the law provides. The land acquisition dispute of Rongwu Expressway, which caused a sensation in 2010, put a group in a very embarrassing situation. The group contracted 980 mu of land from the state-owned Baoding farm in 1997. Now it needs to recover 225 mu of land due to the construction of Rongwu expressway. However, at this time, as the owner of land contractual management right, the group can not obtain land compensation. The reply is that the group is not the land use right holder, because the state-owned land belongs to the state, The land of Hebei state-owned farm should belong to the state, hebei state-owned farms as land use rights personnel can get land compensation. In practice, the status of the right subject of the land contract management right holder is easy to be ignored, and the land contract management right holder is not treated as an independent compensation subject. In fact, the land contract management right holder should be included in the land use right holder, because the "Property Law" passed in 2007 has clearly listed the land contract management right as a type of usufructuary right. In the process of land acquisition, the government has recovered the land ownership of the state-owned farm and the contractor's land contractual management right. If only the land use right holder is compensated, it is obviously not in line with the principle of right relief under the rule of law. Therefore, from the current legal point of view, it should be indisputable that the land contractual management right is compensated when the government recovers the land. For the government's land acquisition implementation department, it is first necessary to establish a fair and reasonable land contract management right compensation price evaluation index system, and secondly to establish a direct payment system of compensation fees, rather than being transferred by state-owned farms. For the land contract management right holder, he can directly request the land acquisition implementation department to provide fair and reasonable compensation in accordance with relevant regulations. If he has any objection to the compensation standards and procedures, he can file a lawsuit in the court to protect his legitimate rights and interests.[5]

Due to historical reasons, there are many cases of state-owned farm land being openly occupied and encroached upon by surrounding villagers, which leads to continuous disputes between state-owned farms and neighboring collective organizations. It is difficult to register the land and it is impossible to settle and compensate fairly. Reclamation areas in Guangdong, Hainan, Beijing, Chongqing and other reclamation areas carefully summarized and sorted out the ownership evidence during the process of land ownership confirmation, actively negotiated with the local government and land management department, and put the recovery of land on the agenda of land management work, mediation that can be mediated, mediation The government ruling that fails, and the ruling that fails to be resolved through legal proceedings, effectively resolved the ownership dispute of the disputed place, in particular, for the unreasonable refusal of the surrounding farmers during the demarcation process, the form of announcement is adopted. Where the farm has conclusive information and clear conclusions, and the farmers cannot provide valid evidence, even if the refusal is made, the land ownership of the state-owned farm will be confirmed, thus avoiding the unreasonable obstruction of the farm's land ownership by the surrounding farmers. However, in the actual compensation and resettlement, the two parties should proceed from the principle of respecting history and harmonious coexistence, and the two parties should negotiate and resolve the dispute. If the negotiation fails, the scope of the dispute should be divided separately, and the undisputed land should be compensated first, and the disputed land should be compensated reasonably after adopting a series of methods described above to determine the ownership of property rights.

   Measures for the Resettlement of Workers by the 4. Government's Resumption of Land from State-owned Farms

After the collective land is expropriated, the current laws and regulations and normative documents stipulate the resettlement channels such as monetization resettlement, agricultural production resettlement, job resettlement, and share dividend resettlement. Monetized resettlement refers to the settlement of livelihood by self-employment after paying resettlement subsidies to resettlement objects. Agricultural production resettlement refers to the way of adjusting land to enable land-expropriated farmers to regain land for agricultural production in order to achieve their full employment. Job resettlement refers to the resettlement method of providing new jobs for land-lost farmers. Share-sharing and dividend-sharing resettlement means that, on the premise of farmers' voluntariness, the land-expropriated rural collective economic organization can, after consultation with the land-use unit, buy shares at the cost of compensation and resettlement for land acquisition, or buy shares at the price of the approved land use right for construction land. These methods also apply to the placement of workers on state-owned farms.[6]

Starting from the overall situation of maintaining the long-term stability of the society, we should improve the standard of land recovery and resettlement fees for state-owned farms, and establish a social security system that the people are willing to accept and have rigid needs. The social security system of the land workers of the recovered state-owned farms should also follow the social security system of the land expropriated farmers, which mainly includes four items: endowment insurance, medical insurance, unemployment insurance and minimum living security. Among them, the focus of paying old-age insurance for state-owned farm workers should be farm workers of working age and above who have reached the old-age age age, and a one-time resettlement subsidy can be given to students who have not reached the working age or who are in school. In terms of medical security, all farm workers will be included in the scope of local medical security. In operation, the security system is generally determined according to the household registration of farm workers. If farm workers are still registered in rural areas, they should participate in the local new rural cooperative medical system. If farm workers become urban residents, they should be included in the scope of urban medical insurance. In terms of unemployment insurance, because the cultural quality of farm workers is generally not high, land is recovered, often accompanied by unemployment, therefore, the establishment of unemployment insurance system is very important. Measures can be taken, such as targeted employment training and employment arrangements by the government. The minimum living security system is not only the need for the recovery of land work on state-owned farms, but also the basic rights that a citizen should enjoy. It should not cover all farm workers whose land has been repossessed, but only those who are older, physically weaker, and whose standard of living is temporarily or permanently lower than or equal to the minimum standard of living published by the State.

5. Suggestions on Perfecting the Legal System of State-owned Farm Land Recovery by the Government

Land is the most important resource and asset in our country, but there is no land expropriation and requisition law in our country so far, and the relevant legal system is only scattered in separate laws and regulations, and a series of issues such as land recovery, requisition, compensation and so on are quite general and vague, lack of practical operability, and there are major defects in the current law. For example, we say that the purpose of land recovery is for public interests, public interest is a big concept, ranging from national public facilities to land for small enterprises. However, in practice, not all construction involves public interest. Such broad regulations lead to no boundary of public interest, and a large amount of land is eroded by this "enclosure movement. In addition, the compensation standard for land acquisition is also extremely unreasonable. For example, the compensation principle determined in the "Land Management Law" is: "Compensation shall be given according to the original use of the requisitioned land." Most of the "original uses" are agricultural uses, and this compensation standard will never be high.

To sum up, the regulations and policies on the compensation and resettlement of state-owned farm land recovery in our country are not unified and perfect at this stage. Should the compensation of state-owned farm land recovery adopt the method of negotiation and bidding or the government pricing? If the method of negotiation and bidding is adopted, it will face the situation of one price for one place, that is, different prices for the same place, which may cause dissatisfaction of farm workers, there is an urgent need to introduce relevant laws to make up for unreasonable remedies for land-lost farm workers, bring such disputes into the scope of arbitration procedures or courts, and give farm workers more rights and remedies; if government pricing is adopted, before the state issues relevant laws and regulations, provinces, autonomous regions and municipalities directly under the Central Government should first issue a series of compensation methods and standards, so that there are laws to follow for such measures as land recovery on state-owned farms. Although the Ministry of Land and Resources and the Ministry of Agriculture have responded to the issue of land recovery from state-owned farms in accordance with the compensation standards for collective land expropriation, and the compensation standards for collective land expropriation are relatively complete, state-owned farms have their own characteristics after all, and the introduction of relevant laws The call for regulations is unstoppable. Only in this way can the recovery of state-owned farm land form a virtuous circle, standardize operation under clear legal regulations, promote the protection of the rights and interests of state-owned farms and farm workers, and promote local economic development. (Word count 5923)

[①]Procedures for the Recovery of State-owned Land Use Rights, published in Land Resources Network, November 4, 2010

[②]Compensation Standard for Land Requisition in Hebei Province

[3]Zhong Jingtao: The Application of Land Acquisition Compensation Law and the Interpretation of Difficulties, China Legal Publishing House, August 2008, p. 87.

[③] Zhong Jingtao: "Application of Land Requisition Compensation Law and Interpretation of Difficulties" China Legal Publishing House, August 2008, p. 163

[4]

[5]Zhong Jingtao: Legal Application and Difficult Explanation of Land Expropriation Compensation, China Legal Publishing House, August 2008, p. 141

[6]Zhong Jingtao: Legal Application and Difficult Explanation of Land Expropriation Compensation, China Legal Publishing House, August 2008, p. 170