LandAcquisitionlawandfarmers土地征用法律和农民

1、Chinas Land Acquisition Law and its impacts?Tej Kumar KarkiLecturer at XJT:UPlanning law and GovernanceIndividual Essay I Planning LawReview the urban land acquisition law of China and critically evaluate its strengths and weaknesses. While doing so, draw evidences and examples from detailed case st

2、udies of at least two urban land acquisition projects implemented in Chinese cities. Outline and Marking Scheme Urban land development challenges (10)Land acquisition law of China (10)Case studies (30)Strengths and weaknesses of the law (30)Conclusions and policy implications 10References 10Instruct

3、ions Total marks available for Individual Essay I is 100 (50% of the final mark). Only answers in English are accepted Coursework must be submitted by November 1, 2013 in the assignment drop-in box no later than 3.00 p.m. Instructions Failure to do so will be penalized as per the Universitys policy.

4、 Both hard and digital copies should be submitted before the deadline. The word limit for the Essay is 2,000 words and the essays should be written in A4 format. Marking criteriaPointClassMark (%) 5First class100-90 to 99Outstanding80 to 89Excellent70 to 79Very Good4Upper second class (2.1)60 to 69C

5、omprehensive 3Lower second class (2.2)50 to 59Competent2Third class40 to 49Adequate1Narrow fail35 to 39Compensable fail0Fail20 to 34Deficient0 to 20Extremely weakPLAGIARISMPlagiarismLand requirement Fast urbanization demands land for employment placement, housing, and urban infrastructure.New urban

6、residents projected Net 1015 million new urban residents annually (Ding, 2004b).Growth of number of cities in China7923364066701002003004005006007001949198119951999(Li, Zhou & Xu 1988);(China Statistical Yearbook 1996 and 2000) Purpose of land requirement Infrastructure projects Urban renewal Ho

7、using development Reform of state-owned-enterprises are taking place at an unprecedented pace and scale.Every year 4 million farmers expropriatedLand Use Rights (LURs)Leasing of public-owned-land in the cities and towns by local governments to users. Users can then sell, rent, mortgage, sublease to

8、third parties.The users are required to pay up-front land conveyance fees that depend upon leasing periods and land use intensity (Ding, 2003)Land acquisition is the other option 1) conversion of rural collectively-owned land to state-owned land shall take place 2) Institutionalizing powers of local

9、 governments so that they can, at low cost, expropriate land from farmers and then sell it to developers at much higher pricesLocal government earn money for urban development Through this process of acquisition and leasing, local governments are able to assemble large amounts of cash needed to fina

10、nce urban development.Forced to sellArticle 10 of the Chinese Constitution states that the state may, in the public interest, requisition land for its use in accordance with the law.“ Eminent Domain (ED): “Zhengdi”Regulation of PropertyTaking and Compensation on State-Owned Land in January 2011 Gove

11、rnment has the obligation to fairly compensate relocated residents, with a required open information and public participation process. A court hearing will be available for any conflict arising during the relocation process and the government no Longer has the right to evict residents without a cour

12、t order (Ye, 2011). Local governments, on the one hand, have to follow these regulations.(Chen, 2008) Chen, J. (2008). Chinas Ding Zi Hu, The United States Kelo, and Singapores Enbloc Process: A New Model for Economic Development Eminent Domain from a given Perspective. Journal of Land Use, 24(1). I

13、n 2004, Article 13 of the Chinese Constitution was amended to give constitutional protection to private property rightsIt provides that “the state may, for the public interest, expropriate or take over private property of citizens for public use, and pay compensation in accordance with the law.” Thi

14、s protection is also echoed in Article 2 of the Land Administration Law, which was amended after the aforementioned constitutional amendmentA comparison with the language of the Fifth Amendment of the United States Constitution, “nor shall private property be taken for public use, without just compe

15、nsation,” Chinese Constitution merely mentions compensation without any requirement that it be just. 2007 enactment and implementation of the Property Law, which provides in Article 42 that:“it is necessary to make compensation for demolishment and relocation according to law and safeguard the legit

16、imate rights and interests of the owners of the real properties expropriated as for the expropriation of the individuals residential houses, it is necessary to safeguard the housing conditions of the owners of the houses expropriated.”For urban housing, the legal requirement is that the acquiring pa

17、rty must negotiate with the property owner to reach an agreement as to the amount of compensation, location of replacement housing, and other relevant matters.Weakness in the provisionHowever, this notion is easily dispelled by the provision, which allows the acquiring party to simply apply for an a

18、dministrative determination regarding the acquisition and then proceed with the acquisition when no private agreement can be reached with the property owner. What is revealing is that after the administrative determination has been made, the property owners appeal to a peoples court does not suspend

19、 or even temporarily halt the acquisition process. In truth, “there is no way . . . to challenge the underlying eviction ex ante, only the compensation amount ex post.” In 1986, the LAL It contained four main components: land compensation resettlement subsidies compensation for young crops Attachmen

20、ts on land Labor resettlement Fair Compensation challengesLand Administration Law 1986-1998 says:Land-use-right holders suitably compensated“suitably compensated” is undefinedCompensationLand6-10 times the average annual output value of acquired landFunds for resettlement4-6 times the derived land p

21、roductivityResettlement subsidies per person4-6(Ding 2007)(Chan 2003)Positive effect Fiscal impact Industrial and economic development (cheap and cost, reduced revenue, free access to LURs)-Tax and employment Major source of land for urbanizationLocal government financing Land use conveyance fees re

22、present one component of the public land leasing system that has played an important role in local government finance.LA the main source of Land Supply A survey of 16 provinces revealed that land acquisition was the main source of the land supply. In a 2-year span from 2000 to 2001, 75% (2.47 millio

23、n mu out of 3.27 million mu) of the land used for construction was acquired by the government. More than 52% of construction took place on cultivated land (Investigating Group of MLR, 2003)NEGATIVEFair Compensation challenges(Rooij 2007)(Ding 2007:6). 05000001000000150000020000002500000FujianHangzho

24、uBuying price RMB per muSelling price RMB per muDestruction of social capital 1.5 million Shanghai households were relocated between 1992 and 1997 4.2 million square feet of housing were demolished Huge loss of social capital, friends and families(Wu, 2000) Cited in (Cervero and Day 2010)Rise in pub

25、lic resentments85,000 protests and 3 million people involved until 2005 (Rooij 2007)66% of the affected farmers in China are unhappy with compensation (Zhu et al. 2006). Court cases against land acquisition 15,000 court cases in Beijing in 2001 zhengdi Zhou & Zhou (2004), cited in (Chan 2006)Ins

26、titutional problems If there is a need, use the state-owned-land even if does not serve public interest. Although land acquired for basic infrastructure represents the highest percentage of all acquisitions (52%), of all acquisitions in 20002001. Land acquired for commercial projects accounted for 2

27、2%, of all acquisitions in 20002001. Negative impacts of flaws and ambiguities of LA Despite the benefits of the public land leasing system for local government financing, flaws and ambiguities within the legislation and implementation of land leasing policies have produced negative impacts for vari

28、ous sectors of society. Public interest? It is difficult to understand how commercial projects can be justified as serving the public interest.Fair compensation The value of land and be sufficient to warrant non-worse-off living standards for farmers who lose land LAL fail to give a clear and measur

29、able definition of non-worse-off living standards Absence of concrete guidelines for just compensation often ad hoc and arbitrary decisions.LALs Inconsistent guidelines Compensation and resettlement subsidies: Article 51 states that different standards and levels shall be applied for major projects

30、of national interest. This policy enables local governments to exercise their political powers to under-compensate farmers for their land.Farmers interests The questions that need to be addressed is the rights and interests farmers have with regard to farmland. There is ambiguity in the LAL in this

31、matterProperty rights No clear definition of property rights in the laws governing farmland, village organization, and farmers. Property rights questions: who is entitled to benefit from land development and at what portion? Portion of compensation is retained in each point when funds were distribut

32、ed downward from high-level governments to low ones (from state to province to city to county to township, respectively) (Ding, 2004a).Job resettlements Local governments and land users to take full responsibility in job resettlement, leaving many affected farmers unemployed. Although Shanghai found

33、 jobs for 69,620 farmers whose land was requisitioned in 20002001, only 9540 farmers (13.7%) received job placement services from the entity that actually acquired the land. To make matters worse, a large portion of affected population is aging. For instance, in Zhejiang province, on average, 40% of

34、 affected population is over 40 years old.Absence of clear legal rights Ad hoc distribution of cash payments received by farmers (Joint Investigating Group of MLR, 2003c).Mostly cash instead of job resettlements A survey conducted by MLR in 2002 of 16 provinces reveals that in 6080% of the cases, ca

35、sh compensation was used instead of job resettlement. The rate in Zhejiang province was even higher, reaching 94.1%.Compensation way below social security payment Hangzhou, 60,000RMB/person is required for a minimum monthly social security payment; this is 25 times the average land acquisition compe

36、nsation per person.Implementation do not match constitution Though both the Chinese Constitution and the LAL require that peasants lives not be adversely affected by land acquisition, implementation of this requirement is difficultHard life of un employed farmersIn the absence of equitable land comp

37、ensation policies, it is hard for unemployed farmers with no land to spend their times in meaningful ways. Disputes related to land acquisition have become the number one reason for mounting a court appeal. Nearly half of the cases in Fujian province in 2001 were related to land acquisition, and Zhe

38、jiang province had an even higher percentage in 20002001. Land acquisition has created and intensified social tension that has quickly spread from rural to urban areas.Words do not match deeds The LAL requires that the quality of life of farmers shall not be adversely affected by compulsory land acq

39、uisition, but does not specify concrete measures to achieve this goal.Farmland and farmers needs Farming does not make peasants rich, but it generates sufficient income to support a minimum level of livelihood and security. Without appropriate training and skills in managing their lump sum payment a

40、nd without appropriate investment channels (if their compensation is sufficient to make any investment at all), it is common for peasants to end up with No land to farm, no income stream to support themselves, and no job skills to compete in the tight urban job markets.Cost of new versus old develop

41、ment It is estimated that 200 million yuan (US$24 million) is needed to develop 1 km2 of an industrial zone (Cao, 2004) To fully develop just 10% of these zoned areas, 772 billion RMB (more than US$90billion) is required. More than 1300km2 have been returned to agricultural use (Cao, 2004).Problems

42、of compulsory purchase / eminent domain (Zhengdi) People are forced to sell their land No scientific basis for fair compensation Public resentment is on the rise Rise in Court cases Destruction of social capitalCompromise and ResettlementAgencies involved on land acquisition The District Government

43、Street Office Resident CommitteeGuangzhou, new policies established Required a two-round public participation requirement for any redevelopment projects Once an area has been identified a survey will be administered to ask all residents who own properties (renters excluded) whether they agree to par

44、ticipate in the redevelopment programPrepare community profile With the required approval rate met by the survey, the district governments redevelopment office, with the street office and resident committees, will then collect a comprehensive community and residential profile of the area and develop

45、 a detailed technical redevelopment plan to submit to the municipal redevelopment office for approval.Profile content Land condition Property ownership Resident demographics Public infrastructure Historical sites Compensation schemes for relocation The approved redevelopment plan made public to all

46、residentsSecond survey A second-round survey will be administered and an approval by a minimum of two-thirds of all residents is required to start the redevelopment phase. It is expected that such required public participation process will ensure the transparency and equity of the urban redevelopment program.Redevelopment of