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 SchemeUrban 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 10Instructio

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

4、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 69Comprehen

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

6、 projectedNet 1015 million new urban residents annually (Ding, 2004b).Growth of number of cities in China(Li, Zhou & Xu 1988);(China Statistical Yearbook 1996 and 2000) Purpose of land requirementInfrastructure projectsUrban renewalHousing developmentReform of state-owned-enterprises are taking plac

7、e 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 third parties.The users are required to pay up-front land conveyanc

8、e fees that depend upon leasing periods and land use intensity (Ding, 2003)Land acquisition is the other option1) conversion of rural collectively-owned land to state-owned land shall take place 2) Institutionalizing powers of local governments so that they can, at low cost, expropriate land from fa

9、rmers and then sell it to developers at much higher pricesLocal government earn money for urban developmentThrough this process of acquisition and leasing, local governments are able to assemble large amounts of cash needed to finance urban development.Forced to sellArticle 10 of the Chinese Constit

10、ution statesthat 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 2011Government has the obligation to fairly compensate relocated residents, with

11、 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 court order (Ye, 2011).Local governments, on the one hand, have to follow the

12、se 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). In 2004, Article 13 of the Chinese Constitution was amended to give constitu

13、tional 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.” This protection is also echoed in Article 2 of the Land Administration Law, wh

14、ich 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 compensation,” Chinese Constitution merely mentions compensation without any req

15、uirement 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 legitimate rights and interests of the owners of the real properties expropriate

16、d 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 party must negotiate with the property owner to reach an agreement as to the

17、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 administrative determination regarding the acquisition and then proceed with

18、 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 or even temporarily halt the acquisition process. In truth, “there is no w

19、ay . . . to challenge the underlying eviction ex ante, only the compensation amount ex post.” In 1986, the LALIt contained four main components: land compensationresettlement subsidies compensation for young crops Attachments on landLabor resettlement Fair Compensation challengesLand Administration

20、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 productivityResettlement subsidies per person4-6(Ding 2007)(Chan 2003)Positive

21、effectFiscal impactIndustrial and economic development (cheap and cost, reduced revenue, free access to LURs)-Tax and employmentMajor source of land for urbanizationLocal government financingLand use conveyance fees represent one component of the public land leasing system that has played an importa

22、nt role in local government finance.LA the main source of Land SupplyA 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 million mu out of 3.27 million mu) of the land used for construction was acquired by the

23、government. More than 52% of construction took place on cultivated land (Investigating Group of MLR, 2003)NegativeFair Compensation challenges(Rooij 2007)(Ding 2007:6). Destruction of social capital1.5 million Shanghai households were relocated between 1992 and 1997 4.2 million square feet of housin

24、g were demolishedHuge loss of social capital, friends and families(Wu, 2000) Cited in (Cervero and Day 2010)Rise in public 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

25、 against land acquisition15,000 court cases in Beijing in 2001 zhengdi Zhou & Zhou (2004), cited in (Chan 2006)Institutional problemsIf 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 o

26、f all acquisitions (52%), of all acquisitions in 20002001. Land acquired for commercial projects accounted for 22%, of all acquisitions in 20002001. Negative impacts of flaws and ambiguities of LADespite the benefits of the public land leasing system for local government financing, flaws and ambigui

27、ties within the legislation and implementation of land leasing policies have produced negative impacts for various sectors of society. Public interest?It is difficult to understand how commercial projects can be justified as serving the public interest.Fair compensationThe value of land and be suffi

28、cient to warrant non-worse-off living standards for farmers who lose landLAL fail to give a clear and measurable definition of non-worse-off living standardsAbsence of concrete guidelines for just compensation often ad hoc and arbitrary decisions.LALs Inconsistent guidelinesCompensation and resettle

29、ment subsidies: Article 51 states that different standards and levels shall be applied for major projects of national interest. This policy enables local governments to exercise their political powers to under-compensate farmers for their land.Farmers interestsThe questions that need to be addressed

30、 is the rights and interests farmers have with regard to farmland. There is ambiguity in the LAL in this matterProperty rightsNo clear definition of property rights in the laws governing farmland, village organization, and farmers.Property rights questions: who is entitled to benefit from land devel

31、opment and at what portion? Portion of compensation is retained in each point when funds were distributed downward from high-level governments to low ones (from state to province to city to county to township, respectively) (Ding, 2004a).Job resettlementsLocal governments and land users to take full

32、 responsibility in job resettlement, leaving many affected farmers unemployed. Although Shanghai found 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

33、 large portion of affected population is aging. For instance, in Zhejiang province, on average, 40% of affected population is over 40 years old.Absence of clear legal rightsAd hoc distribution of cash payments received by farmers (Joint Investigating Group of MLR, 2003c).Mostly cash instead of job r

34、esettlementsA survey conducted by MLR in 2002 of 16 provinces reveals that in 6080% of the cases, cash compensation was used instead of job resettlement. The rate in Zhejiang province was even higher, reaching 94.1%.Compensation way below social security paymentHangzhou, 60,000RMB/person is required

35、 for a minimum monthly social security payment; this is 25 times the average land acquisition compensation per person.Implementation do not match constitutionThough both the Chinese Constitution and the LAL require that peasants lives not be adversely affected by land acquisition, implementation of

36、this requirement is difficultHard life of un employed farmersIn the absence of equitable land compensation 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 app

37、eal. Nearly half of the cases in Fujian province in 2001 were related to land acquisition, and Zhejiang 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 deedsThe LAL re

38、quires that the quality of life of farmers shall not be adversely affected by compulsory land acquisition, but does not specify concrete measures to achieve this goal.Farmland and farmers needsFarming does not make peasants rich, but it generates sufficient income to support a minimum level of livel

39、ihood and security. Without appropriate training and skills in managing their lump sum payment and without appropriate investment channels (if their compensation is sufficient to make any investment at all), it is common for peasants to end up withNo land to farm, no income stream to support themsel

40、ves, and no job skills to compete in the tight urban job markets.Cost of new versus old developmentIt 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

41、) is required. More than 1300km2 have been returned to agricultural use (Cao, 2004).Problems of compulsory purchase / eminent domain (Zhengdi)People are forced to sell their landNo scientific basis for fair compensationPublic resentment is on the riseRise in Court casesDestruction of social capitalC

42、ompromise and ResettlementAgencies involved on land acquisitionThe District GovernmentStreet OfficeResident CommitteeGuangzhou, new policies establishedRequired a two-round public participation requirement for any redevelopment projectsOnce an area has been identified a survey will be administered t

43、o ask all residents who own properties (renters excluded) whether they agree to participate in the redevelopment programPrepare community profileWith the required approval rate met by the survey, the district governments redevelopment office, with the street office and resident committees, will then

44、 collect a comprehensive community and residential profile of the area and develop a detailed technical redevelopment plan to submit to the municipal redevelopment office for approval.Profile contentLand conditionProperty ownershipResident demographicsPublic infrastructureHistorical sitesCompensatio

45、n schemes for relocationThe approved redevelopment plan made public to all residentsSecond surveyA 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 urban villagesA