异化与回归:我国城市土地储备制度的正当性考辨

城市土地储备制度是近年来在我国各地实践中产生的一项土地供应新制度。其实质在于对一级市场土地供应的国家垄断的强化。无论从经济的合理性还是制度的合宪性分析,国家垄断土地一级市场都有其正当性;储备本身是天然的调控工具。但城市土地储备制度在其演进过程中日益偏离了“调控城市存量土地”的初衷,而异化为“地方政府将土地低进高出,实现利益最大化的工具”。因此,必须让城市土地储备制度回归其作为调控工具的本来价值。

Deviation or Return: A Study of the Legitimacy of Urban Land Reserve in China

Urban land reserve is newly introduced into land supply practice in China,which stresses state monopoly of the first-class land market. Analyzing from constitutionality and economic rationality,one sees that the legitimacy of state monopoly of the first-class land market originates from the fact that the state governs the land market and purports to make the best use of land,which is an integral part of the state’s exercise of its power of land management. Land reserve per se is an adjusting and regulating tool. But urban land reserve gradually deviates from its real purpose to “adjust and control the storage of urban land” and degenerates into a tool “to seek maximum profits by local governments by way of buying at a low price and selling at a high price.” In this process the municipal government becomes the biggest winner while the rights of other land owners,especially the collective land owners are excessively limited,which has led to an imbalance of the attribution of land interests. As such,we must restore the prior character of the urban land reserve as a regulation tool.