《物权法》中集体土地权利析论——从土地征收视角的检视

土地征收是《物权法》中的一个重要制度。在我国,土地征收是对集体土地权利的剥夺,但是集体土地所有权主体模糊,集体土地所有权和全民土地所有权地位不平等等问题在《物权法》中并未有效解决,这对土地征收中集体组织及其成员的权利保护不利。为此,要明确农村集体土地所有主体是集体成员共同共有,但又必须结合成员权制度加以生成,以保障团体性权利和个人权利相互为用,保证土地公有性质。土地征收制度设计要建立在国家土地所有和集体土地所有平等基础上,坚持市场化原则,建立集体土地产权可流转机制,贯彻契约精神,并完善土地司法审查制度,确保土地征收制度设计的公正诉求。

The Analysis of the Ownership of Collective Land of the Property Law: From a view of land taking

Land expropriation is an important part of the Property Law. In our country, land expropriation is a depriving of the ownership of collective land, but we cannot reach a clear the ownership subject, the problem such as both the ownership of collective land and the ownership of universal land are not equal, etc. All these problems are not resolved by the Property Law, this is useless for the protecting the rights of collective organization and its members. So it is necessary to clarify the ownership of the collective land are owned by all the members, but it must conjoint with the membership system, to make sure that the rights of the collective and the rights of the individual are mutual complementary, to ensure the public nature of the land. The design of the land expropriation system should be based on the equality between the ownership of the country and the ownership of the collective, based on general adoption of the market principle, the establishment of transfer-mechanism ownership of collective land, the spirit of contract, adds to a perfect judicial review system of the land taking, to make sure land expropriation system is a proper sue.