大陆集体土地征收补偿制度改革探讨--基于两岸土地征收的比较视角

摘要

土地征收不可避免，因涉及重大的利益调整，既需规范，也需谨慎启动。两岸虽然土地制度不同，但土地征收改革面临共性问题，在基本征收程序设置、利益衡量机制上均具有相似性。相比之下，大陆集体土地征收启动的前提条件失之于宽，政府享有事实上不受限制的征收权并缺乏制衡机制；补偿额未考虑所有权让渡，仅部分弥补使用权价值；在补偿价的形成方式上，剥夺了集体土地所有者的市场主体地位，同时，集体所有权虚置，土地集体所有权的共有人被架空。通过适当界定征收目的性限制，转变城镇化建设思路，克制征地行为的启动与征收规模；承认土地集体所有权平等独立的市场主体地位，市价补偿，打破土地供给垄断；明确征收相对人与重构集体经济组织并举，构建开放性的制衡机制，有助于平衡、保障各方利益，完善征地补偿制度。%It is inevitable to expropriate land for economic development, but should be started conservatively and operated norma⁃tively in order to balance interests of all parties. Although there are many differences in both political system and land system be⁃tween Taiwan and Mainland China, yet both sides are also faced with common problems in the reform of land expropriation and have similarities in basic expropriation procedure setting and benefit measurement mechanism. In contrast, the collectively-owned land expropriation is not strict enough with its preconditions in Mainland China, while the government owns the real unlimited eminent domain but lacks the mechanism with check and balance;transferring the ownership has not been taken into account but only partial value of usage right has been compensated when the quantum of compensation is to be paid;the collective land owner’s principal sta⁃tus in the market has been deprived in the ways of compensation price formation, while the collective ownership and the co-owner of collective land ownership are impracticable and exist in name only. It will be helpful to balance and guarantee the interests of all par⁃ties, as well as compensation policy for land expropriation through the appropriate definition and limitation of the expropriation pur⁃posiveness, the transformation of the construction thoughts of urbanization, the restraints on the start of land expropriation action and the expropriation scale, the admission to the equal and independent principal status in the market of the collective land owner, the compensation by market price to break the monopoly of land supply, the definite consideration given to both the expropriation counterpart and the reconstruction of collective economic organization, and the construction of the opening mechanism with the check and balance.