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This article, written by a partner at a Shanghai, China, law firm, covers the conflicts between land zoning power and land development rights in China. It discusses the structure and legal attributes of the land zoning power in China, whether development rights in China are public or private, the scope of development rights in China, and the conflict between zoning power and development rights and attempts being made to ease this conflict.
Land is either owned by the State or by rural collectives in the People's Republic of China. However, ownership by the rural collectives is only in name, as a rural collective cannot decide the purposes for which its land will be used and must obey the planning regulations of the government without receiving compensation. This inability by the collectives to decide the use of their own land may be seen as an infringement upon land development rights by the State's land zoning power. The power of land zoning is an administrative power in China and can be divided into urban-rural planning power and land planning power. These powers become abused because the two planning powers tend to overlap, and there is no opportunity for public participation or due process. Presently, the land development right is separated from land ownership. Land development rights include utilization of space on the surface of or above or under the land and are of great economic value in modern society. What is the land zoning power in China? What is the land development right? How are farmers' land development rights being infringed upon? What attempts have been made by the Chinese government to address this situation? This article answers those four questions.
The land zoning power can be divided into two categories: urban-rural planning power and land planning power. On one hand, urban-rural planning power is a comprehensive planning power that addresses the utilization of space, dealing with the arrangement and layout of urban-rural land. Land planning power, on the other hand, controls the arrangement of how land is used. It can be divided into national territorial planning and the overall planning for land utilization. National territorial planning is done according to economic and social development strategies focused on, for example, nature, the economy, and society; this type of planning looks at the larger picture of development in China and the layout of land space by the State. The other type of land planning, overall planning for land utilization, is conducted in two steps. First, the State makes a general arrangement to be implemented nationwide. Then, a more specific corresponding plan is made by each lower level of government in accordance with larger, state-created arrangement.
Dr. Fang Ye is a partner of ALLBRIGHT LAW OFFICES, the largest PRC law firm headquarted in Shanghai, China. Her practice area includes real estates and finance, land taking, corporate law, and litigation. Dr. Ye got her S.J.D and LL.B. from East China University of Politices and Law, and her doctoral degree dissertation is about land taking. She got her LL.M. from both William S. Richardson School of Law, University of Hawaii, and Tsing Hua University.
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