Property expropriation is "the procedure that the administrative subject obtains the ownership or other property rights of private real estate by compulsory means for the purpose of public interest, in accordance with the legal form and the principle of fair compensation in advance." [1](P365) One of its important components is land expropriation, and China's current land expropriation system was formed under the conditions of planned economy.

"The Constitution is the epitome of a country's development process. Social changes are first reflected in the constitution in different forms, which makes the constitution have the characteristics of history and times. " [2](P 1) Since the founding of New China, four constitutions have been born in China, namely, four constitutions in 54, 75, 78 and 82 years respectively. Every constitution stipulates the property expropriation system, which reflects the practical evolution process of China's land expropriation system from its emergence to its continuous development and perfection, and also establishes the constitutional norms of property expropriation. 1954 the constitution stipulates: "the state may purchase, requisition or nationalize urban and rural land and other means of production for the purpose of public interest and in accordance with the conditions prescribed by law." 1975 constitution is not much different from the previous constitution, except that the words "for the needs of public interests" are deleted in the same clause. The composition of 1978 is slightly different. Compared with the previous constitution, the words "urban and rural areas" and "other means of production" are mainly deleted from the same clause. Compared with the previous constitution, 1982 added the words "for the public interest", restored the formulation of 1954, but deleted "conditions", "purchase" or nationalization "* *11. On March 14, 2004, the "Amendment to the Constitution" adopted by the Second Session of the Tenth National People's Congress stipulated: "The state may expropriate or requisition land according to the law and make compensation. "The most obvious action of this amendment is to put forward the paid use of land, which is a great progress compared with the previous constitution and amendments. But unfortunately, the current constitution clearly gives the government the right to levy, but at the same time it does not set the scope, procedures and compensation standards of the government's right to levy, which leads to the fact that the levy is out of control, which obviously does not meet the inherent requirements of the socialist rule of law.

Second, the status quo and main problems of China's land expropriation system

What is the relationship between system and economic development? Lin Yifu believes: "There is an obvious two-way relationship between institutions and economic development: on the one hand, institutions will affect the level and process of economic development; On the other hand, economic development can and does often lead to institutional changes. " [3](P 16) China's current land expropriation system is the product of the planned economy system, which played a positive role under the specific historical conditions at that time. However, with the deepening of China's economic reform, the foundation of the original land expropriation system is gradually changing, which leads to the shortcomings in the design and implementation of the original system and begins to restrict and affect the healthy development of China's agricultural economy and the steady growth of farmers' income.

(A) the guiding ideology of system design is unfair. North believes that: "institution is a series of rules, law-abiding procedures and ethical norms of behavior, aiming at restraining individual behaviors that pursue the maximization of subject welfare or utility interests." [4](P225-226) In his view, the system is a social rule of the game. More normatively, they are artificially set constraints that determine the relationship between people. The most basic function of a good institutional arrangement is economy, that is, to enable one or more economic entities to improve their own welfare without reducing the welfare of others, or to enable economic entities to reach a higher target level under their budget constraints. However, in the design concept of China's land expropriation system, there is an obvious guiding ideology to realize economic development at the expense of farmers' interests. This is determined by the characteristics of planned economy and the national conditions at that time. In the era of "the whole society is like a big factory", due to the inherent shortage of capital investment, economic development can only rely on agriculture to support industry and realize capital accumulation from the inside. This institutional arrangement under the guiding ideology has adapted to and promoted the rapid development of China's economy, especially the rapid rise of heavy industry. However, this compulsory institutional arrangement also determines the serious asymmetry of rights and obligations between the two parties in the implementation of the land acquisition system. Farmers are at the disadvantage of "rules of the game" and bear huge institutional costs, which seriously restricts the development of agricultural economy and the growth of farmers' income.

The legislative procedure devalues farmers' land property rights. The newly revised Constitution in 2004 stipulates: "Citizens' lawful private property is inviolable. However, "the state can expropriate or requisition farmers' private property according to the law, and compensate them according to the needs of public interests." There is a theoretical paradox in the above provisions of the Constitution. We know that urban land belongs to the state, excluding the existence of other rights holders. With the gradual expansion of the city, more and more land collectively owned by farmers is zoned into the urban area, which leads to the change of ownership of urban land from farmers' collective to the state. How to achieve transformation? What is the position of farmers' rights and interests in this transformation? First of all, in order to turn the newly transferred urban land into state-owned, the government must use its land acquisition right. According to the Constitution, the right of land expropriation can only be exercised for the public interest. However, in fact, a large amount of land in cities is not in the public interest. Some local governments, under the slogan of "managing land" and on the grounds that "urban land belongs to the state", wantonly expropriated farmers' land zoned into cities, which triggered fierce social contradictions and potential social conflicts, and was not conducive to agricultural economic development and social stability. It can be seen that the state has neglected the protection of farmers' land property rights in legislation, and in the process of coordinated development of urban and rural economy, the rights and interests of "township" have been transferred to "city" for free again.

(3) The definition of public interest is not clear. The original intention of the state to exercise the right of land expropriation is to maximize the public interest. However, due to the lack of a clear definition of the Constitution and laws, in the planned economy era and the current transition period, all government activities can be carried out under the banner of "public interest", resulting in a large number of non-public interest land being solved through land acquisition. In the market economy, land is an important factor of production and should be mainly allocated by the market. However, in real life, due to the excessive intervention of administrative power in land supply, the problem that should have been solved by the market has turned to administrative means, resulting in the situation that expropriation completely replaces the market and the government monopolizes the primary land market, which makes the land expropriation mechanism expand infinitely. Article 43 of the Land Management Law stipulates that any unit or individual that needs to use land for construction must apply for the use of state-owned land according to law. State-owned land applied for according to law as mentioned in the preceding paragraph includes land owned by the state and land originally owned by farmers' collectives requisitioned by the state. This provision reflects the administration of land supply in China, and administrative means have replaced market means.

Land expropriation lacks due process. In modern constitution, the principle of due process is the core of property rights protection. "The so-called procedure is the systematic arrangement of people's mutual behavior for the choice of legal decisions." [5](P76) Standardize the operation of power (interests) through procedures. Due to the inevitability of property expropriation, the protection of property mainly tests the purpose of property expropriation, compensation standards and the legitimacy of expropriation procedures. In the current land acquisition procedure, it is only stipulated that after the land acquisition compensation and resettlement scheme is determined, the relevant local people's government should make an announcement and listen to the opinions of the rural collective economic organizations and farmers whose land has been expropriated. But this is far from the requirement of due process principle. The main reason is the lack of public hearing system when making land planning, reviewing public interests and determining compensation standards; In the compensation for land expropriation, there is a lack of neutral evaluation institutions; Once a dispute occurs, there is no corresponding judicial relief. As a result, due to the irregular and opaque collection procedures, a large number of rent-seeking behaviors have been brewed, resulting in a large number of corruption cases.

(5) The compensation standard is low and the compensation payment channels are unreasonable. The current compensation standard for land expropriation in China is to compensate according to the original use of the land. This provision denies the interests of farmers in the proliferation of land property and is an institutional deprivation. For cultivated land, the specific compensation costs include land compensation fees, resettlement subsidies, ground attachments and young crops compensation fees, ignoring the existence of farmers' land contractual management rights. In practice, due to the weak position of farmers in land acquisition, even the above-mentioned lower standards are often not collected in time and in full. As for the payment of compensation, in practice, most of them are paid directly by the land-using units to the heads of rural collective economic organizations. As for the specific standards, amount and distribution, it is often a black-box operation, which leads to the opaque distribution channels of farmland compensation, which makes farmers deprived by the government, developers and village leaders in land acquisition compensation and seriously damages their interests.

(6) The current land income distribution system stimulates the government to requisition more land. Article 55 of China's Land Management Law stipulates that 70% of the paid land use fees for new construction land shall be owned by local governments. In practice, most of the land transfer fees are paid in one lump sum, which leads to the uneven distribution of the benefits and costs of land expropriation among local government officials in different terms. Under the existing system, whoever has more land acquisition and transfer during his term of office will gain more. When the income of land transfer matches the cost, the incumbent officials get all the income and the successor officials bear almost all the costs. Under this incentive and restraint system, how can it not stimulate local governments to acquire more land? According to the statistics of the Ministry of Land and Resources, by the end of 2002, the national accumulated land transfer fee had reached more than 730 billion yuan. Taking land at a low price and selling it at a high price in a non-market way has become an important channel for many local governments to create political achievements and increase fiscal revenue.

Third, improve China's land acquisition system countermeasures and measures

(A) re-establish a correct concept of land acquisition. Starting with standardizing the distribution of interests between the state and farmers, the land supply system based on market allocation is established. After the founding of the People's Republic of China, the state made the vast rural areas and farmers pay a heavy price through the "scissors difference" in the prices of workers and peasants. Up to now, on the issue of the relationship between the state and farmers' interests, governments at all levels still generally consciously or unconsciously have the concept that modernization must be at the expense of farmers' interests. Under the social background of the widening gap between urban and rural areas, it is not advisable to continue to adopt the land acquisition thinking of "integrating agriculture with industry". If this concept is not changed, farmers will never enjoy "national treatment" and the reform of land acquisition system will not be in place. In the reform and design of land expropriation system, we should realize that the public power of land expropriation right is not a means for the government to acquire land cheaply, truly establish and implement the guiding ideology of "power for the people, affection for the people, and benefit for the people", change government functions, and establish a land supply system based on market allocation. "The government will always be a service issue, not a power issue." [6](P46) The land expropriation system is only a form for the government to provide public goods and serve the society, not a means for the government to make profits.

(2) Respect and protect farmers' land property rights. "The so-called property, from a legal point of view, is a set of rights that are freely exercised by a group of owners, and their exercise is not interfered by others." [7](P 125) Land collectively owned by farmers is an important property of farmers established and protected by the Constitution, and farmers should enjoy the right to freely use their property and create income. However, in practice, farmers' land property rights are often vague, which is related to the defects of this form of rights, but the more important reason is that the government's awareness of protecting property rights is weak. In the reform of land expropriation system, we should respect and protect farmers' land property rights as the basis of system design. First, abolish the provisions of the fourth paragraph of the Constitution and clear the constitutional obstacles. Second, the ownership of farmers' collective land and state-owned land should be treated equally and protected equally, and it is not allowed to favor one over the other. Farmers' collective land inside and outside the planning area is allowed to enter the market directly, and land users and farmers can trade freely. The government only formulates trading rules and acts as a good supervisor. This can not only reduce the confrontation in the process of land acquisition, but also expand the land supply, solve the demand for urbanization land and realize a stable land supply; It can also enable farmers' land property to enter the market, obtain asset income and improve income level.

(three) clearly define the public interest and establish the scope of land acquisition. The government can only occupy private property for the benefit of the public, because the government is the most efficient supplier of some public products, which means that eminent domain should be used to promote the supply of government public products rather than private products. Therefore, when the government wants to supply products with non-exclusive and non-confrontational characteristics, it is justified to requisition private property. Therefore, public interest is related to public goods. Under the market economy system, public construction projects are no longer completely monopolized by the state as under the planned economy system, and some land that belongs to the public interest in real construction has great profits. Many public uses and utilities need the participation of social subjects. In this case, the subject of land use includes not only public welfare subjects, but also profit-making subjects. For the purpose of public interest, it may exist in market competitive industries or non-market competitive industries. Therefore, only the supply of public goods and some special types of land can be considered to exercise eminent domain. Public interest is only a necessary condition for land acquisition, not a sufficient condition. Because in principle, the government can buy necessary inputs including land from private owners at the price required by them to provide public goods, and it can only be used if the negotiation cost is too high to exercise the right of land expropriation. In developed market economy countries, such as Britain, France, the United States and other countries, many public utilities are invested in development and construction with the help of private forces, and land acquisition rights are rarely used, but land is obtained through market transactions. Because the compensation for land expropriation is equivalent to the market price, and the land expropriation procedure is complex and time-consuming, public land users often do not first consider using eminent domain to acquire land. Generally, land expropriation will only be implemented if it is difficult to buy. This is just the opposite of a large number of "low threshold" abuses of land acquisition rights in China. Therefore, two conditions must be met before land acquisition can be considered. One is for the public interest, and the other is that the negotiation cost is too high. Defining a narrow scope of land expropriation can change the past abuse of eminent domain.

(4) Improve the legal procedures of land expropriation. The seriousness and strictness of law lies in its procedure. Without procedure, there is no law. The amendment to the US Constitution stipulates that no one can be deprived of life, freedom or property without due process of law. According to the interpretation of American courts, due process of law has two meanings: (1) due process of law is a rule of substantive law, which is called substantive due process of law. In this sense, due process of law requires that laws enacted by Congress must conform to fairness and justice; (2) Due process of law is a rule of procedural law, which is called procedural due process of law. In this sense, when the legal procedure requires the exercise of power to deprive private life, freedom or property, the opinions of the parties must be listened to, and the parties have the right to request a hearing. Therefore, hearing is a right enjoyed by American citizens according to the Constitution. The principle of natural justice corresponds to due process of law in Britain. It mainly includes two contents: listening to each other's opinions and no one can be a judge in his own case. Among them, listening to each other's opinions includes three rules: the right of citizens to be informed before a reasonable time; Citizens have the right to know the arguments of administrative organs; Citizens have the right to protect themselves. China's land expropriation procedure lacks the principle of due process of law. The existing regulation is to listen to opinions after the land acquisition compensation and resettlement plan is established, depriving farmers of the right to hearing, and there is no institution independent of the government to preside over the hearing. In the future revision, we should focus on improving three procedures and one system. One is the public interest hearing procedure of land expropriation, which is a formal hearing procedure, mainly about whether it is public interest and the rationality of land expropriation area and location. The second is the standard hearing procedure of land acquisition compensation, that is, the fairness and rationality of hearing compensation. Only after the above two hearings can we exercise the right of eminent domain. The third is the judicial relief procedure of land expropriation. "Administrative expropriation and relief system is a kind of defense and appeal method when citizens' rights and interests are or may be infringed by administrative organs. "Establish a land expropriation committee independent of the government, be responsible for presiding over public interest hearings and land expropriation compensation hearings, and supervise compensation payments to ensure the realization of the principle of due process of law.

(5) Reform the land transfer fee system to curb the government's impulse to acquire land. Land transfer fee is actually the sum of land rent for several years of land use. The land transfer fee obtained by the government is largely an advance of future income, which is manifested in the perspective of inter-temporal local governments, that is, the current government takes back the income of the next government in advance, which is an overdraft of the land income of the next government. Therefore, the economic essence of land rent can be reduced to land transfer fee, and the local government in office can transfer the land, but the income of the land is paid in installments every year within the service life of the land. For the current government, the more land is sold, the more expected income will be left to the next government, so that the impulse of land acquisition can be suppressed economically. In addition, the annual payment of land transfer fees reduces the cost of real estate developers and is also conducive to the healthy development of the real estate industry.

(six) improve the threshold of land acquisition compensation, standardize the land acquisition access system. Compensation for land expropriation must be fair and reasonable. The principle of social burden of property expropriation means that when property is expropriated for government purposes, the property owner should be compensated fairly for the value of the expropriated property, otherwise it is unfair to "single out specific individuals to bear social burden". At present, the international regulations on investment protection are adequate, timely and effective compensation. The law of China foreign-funded enterprises stipulates "corresponding compensation" and the land law stipulates "appropriate compensation". There are great differences between "corresponding", "appropriate" and "sufficient", and the standards mastered in practice may be very different, which may easily cause dissatisfaction among the masses. The law should have uniform provisions, uniform standards and uniform interpretations, and compensate according to the market price. Unreasonable compensation is also a kind of deprivation. It is not advisable to complete urban construction and realize economic development by depriving private property, and the law should stipulate that the expropriation of private property should be fully compensated. With regard to the payment of compensation, the land requisition committee should pay it directly to the compensated individual through the bank to avoid cheating in the middle and create opportunities for embezzlement and misappropriation of compensation.

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