文章认为,征地补偿反映了土地权利和国家征地权之间的关系。合理的征地补偿应当基于征地双方的有效议价过程。这一议价过程虽然并非完全市场过程,但是也不应当是政府的单方定价过程。在中国目前的土地法律中,普遍存在三方面问题:立法中缺乏议价环节或安排不合理、既有的议价安排缺乏法律保障、议价制度存在城乡差别和歧视。为了减少征地纠纷、维护土地财产关系的稳定性,应当通过立法固化某些实践中行之有效的议价权利和程序,并给予其法律保障,特别是司法保障。
<<Compensation of land taking should reflect the relationship between the land right holders and the dominant domain power of the government.As a result,reasonable compensation should be based on the effective bargaining process of the effected parties.This process is not always based on a free market.But it should not be a unilateral pricing by the government either.However,an examination of the past land reform in China shows that land compensation has been taken as a way of reallocation of land resource by the government.This has led to 3 fundamental problems in the land laws in China:First of all,many laws and regulations ignore legal construction of bargaining process in the land taking or land requisition process.Secondly,even when there are such procedural requirements,legal protection of enforcement of such procedural requirements is far from sufficient.Thirdly,bargaining powers are discriminatory different between the rural right holders and urban right holders.In order to reduce land disputes and maintain the stability of property relationship,it is suggested in this article that bargaining power and procedures that have been proved efficient in practice should be crystallized by law,which should entitle full legal and especially judicial protection to land right holders in both urban and rural areas.
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