중국 토지수용제도의 현황과 문제점 (A Study on China's Land Expropriation System)

서지정보

· 발행기관 : 경희대학교 법학연구소
· 수록지 정보 : 경희법학 / 43권 / 1호 / 175 ~ 201페이지
· 저자명 : 강효백

초록

In china, various policies have been framed, such as strengthened calls for regional government account ability, social security cost for farmers as to compensation, employment rights and guarantees of livelihood. However, without allowing farmers to completely possess have the land ownership rights, such as lease and transfer rights, security rights, and the right to freely buy and sell land, such measures can be nothing more than stopgap policies.
Under the justification of public interest, the regional governments in China often expropriate lands from farmers at arbitrary giveaway prices and turn such lands commercial use. An increasing number of such infringements on farmers' rights to their land has finally kindled the farmers to protest, causing social unrest.
The root of the problems derived from abusive land expropriation (such as misuse of expropriation rights by the regional governments, unreasonable base and coverage of compensation, undemocratic processes of expropriation, delayed payment of compensation, and institutional inertia in moving people afterward) is lies in the incomplete ownership of land by farmers.
When turning farmland into land for uses other than farming as a part of the process of expropriation of a rural community, the ownership is transferred to the state and the owners of the rural communities are not able to directly participate in the land markets.
The expropriation of agricultural land and its transformation to commercial real estate often carried out by various regional governments in China is in fact market conduct. The process represents an exchange between community land ownership and state land ownership and it is supposed to be made through transactions based on negotiation. In reality, however, it is accomplished by coercive deprivation of community land ownership.
* Professor, Graduate School of International Legal Affairs, Kyung Hee University.
This phenomenon derives from the ‘dual track system’ in which state land and community land coexist, and by which land is expropriated in accordance with the planned economic system, while the land transaction is carried out in accordance with the market economic mechanism. This dual track system is disadvantageous for the farmers: Under this system the market price of the expropriated land far exceeds the land compensation amount, provided to the farmer. As a result, the regional governments and the businesses that carry out the transaction acquire large gains while the farmers turn over their land properties at what is practically a giveaway price.
The community land ownership of Chinese farmers is in substance little more than the right of cultivation and the farmers do not even have the right to express their dissent regarding land expropriation. Under the justification of public interest, regional governments are abusing the land expropriation system while rapidly decreasing the acreage under cultivation and widening the gap between urban and rural regions, thereby leading to the basic cause of social unrest.
The fundamental solution to the problem of land expropriation in China is to complement weaknesses scattered throughout various laws and regulations, such as the law of realty and the real estate administration law, and provide for systematic legal recourse that will allow farmers to possess land ownership in its entirety.
The Chinese government now appears to be in the middle of promoting the enactment of land expropriation laws designed to ensure the legal rights and interests of those subject to expropriation, and include the authorization of complete land expropriation. These laws also regulate the compensation principles that are not only just and transparent, but which are also designed to maximize the efficient use of land resources.
However, reforming the current rural community land ownership that does not include the right of disposal, and granting the farmers the complete land ownership, may shake the vary foundation on which public ownership in Chinese socialism is based. For this reason, it is unlikely materialize any time soon.

영어초록

In china, various policies have been framed, such as strengthened calls for regional government account ability, social security cost for farmers as to compensation, employment rights and guarantees of livelihood. However, without allowing farmers to completely possess have the land ownership rights, such as lease and transfer rights, security rights, and the right to freely buy and sell land, such measures can be nothing more than stopgap policies.
Under the justification of public interest, the regional governments in China often expropriate lands from farmers at arbitrary giveaway prices and turn such lands commercial use. An increasing number of such infringements on farmers' rights to their land has finally kindled the farmers to protest, causing social unrest.
The root of the problems derived from abusive land expropriation (such as misuse of expropriation rights by the regional governments, unreasonable base and coverage of compensation, undemocratic processes of expropriation, delayed payment of compensation, and institutional inertia in moving people afterward) is lies in the incomplete ownership of land by farmers.
When turning farmland into land for uses other than farming as a part of the process of expropriation of a rural community, the ownership is transferred to the state and the owners of the rural communities are not able to directly participate in the land markets.
The expropriation of agricultural land and its transformation to commercial real estate often carried out by various regional governments in China is in fact market conduct. The process represents an exchange between community land ownership and state land ownership and it is supposed to be made through transactions based on negotiation. In reality, however, it is accomplished by coercive deprivation of community land ownership.
* Professor, Graduate School of International Legal Affairs, Kyung Hee University.
This phenomenon derives from the ‘dual track system’ in which state land and community land coexist, and by which land is expropriated in accordance with the planned economic system, while the land transaction is carried out in accordance with the market economic mechanism. This dual track system is disadvantageous for the farmers: Under this system the market price of the expropriated land far exceeds the land compensation amount, provided to the farmer. As a result, the regional governments and the businesses that carry out the transaction acquire large gains while the farmers turn over their land properties at what is practically a giveaway price.
The community land ownership of Chinese farmers is in substance little more than the right of cultivation and the farmers do not even have the right to express their dissent regarding land expropriation. Under the justification of public interest, regional governments are abusing the land expropriation system while rapidly decreasing the acreage under cultivation and widening the gap between urban and rural regions, thereby leading to the basic cause of social unrest.
The fundamental solution to the problem of land expropriation in China is to complement weaknesses scattered throughout various laws and regulations, such as the law of realty and the real estate administration law, and provide for systematic legal recourse that will allow farmers to possess land ownership in its entirety.
The Chinese government now appears to be in the middle of promoting the enactment of land expropriation laws designed to ensure the legal rights and interests of those subject to expropriation, and include the authorization of complete land expropriation. These laws also regulate the compensation principles that are not only just and transparent, but which are also designed to maximize the efficient use of land resources.
However, reforming the current rural community land ownership that does not include the right of disposal, and granting the farmers the complete land ownership, may shake the vary foundation on which public ownership in Chinese socialism is based. For this reason, it is unlikely materialize any time soon.

참고자료

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