From benign unconstitutionality to delegated legislation: Analysis on the ways for legal reform of China rural collective construction land circulation

《From benign unconstitutionality to delegated legislation: Analysis on the ways for legal reform of China rural collective construction land circulation》

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关键字: Rural collective construction land; Usage right circulation; Benign unconstitutionality; Delegated legislation; Ways of reform; SHENZHEN

作者单位: [Huang, Li] China Univ Geosci Wuhan, Sch Publ Adm, Wuhan, Hubei, Peoples R China. Huang, L (reprint author), Lumo Rd 388, Wuhan 430074, Hubei, Peoples R China. E-Mail: huangli@cug.edu.cn

摘要: During the construction of China's society ruled by law, in order to cope with the long-lasting conflict between legal norm and social reality, two different reform models "benign unconstitutionality" and "delegated legislation" have appeared successively. In virtue of the transition process of reform model, this paper relatively systematically reviews research documents and combs through governmental documents aiming at the problem of legal restrictions faced by right circulation of collective construction land usage. The basic research conclusion of this paper proves that, the strict restriction of existing legal norms on collective construction land circulation has induced invisible circulation of collective construction land. Facing widely existing problem of invisible circulation, some local governments have launched the "co-equal market" model to break through the restriction of existing law by means of benign unconstitutionality; under the "delegated legislation" model, "co-equal market" model has been promoted in pilot areas of reform. In the section of collective construction land usage right transfer, "same right for same land" with state-owned construction land has been preliminarily realized, but in the sections of usage right leading, transfer and mortgage, etc., there is still the problem of lack of follow-up management system.