CAJ | 학술논문

房屋征收中国有土地使用权的提前收回本质上是对财产权的征收。虽然相关法律没有明确规定房屋征收中对国有土地使用权是否给予补偿和如何进行补偿，但财产征收补偿制度本身既有充分的法理依据和宪法依据，也有具体的法律依据。房屋征收中提前收回国有土地使用权时，除了应退还剩余年限的土地使用权出让金，补偿范围还应包括土地使用者的投资开发利益和该土地的预期增值利益；补偿标准应根据取得国有土地使用权的不同方式，即出让方式与划拨方式分别确定：对于出让土地的使用权，应当综合考虑该土地的用途、地理位置、剩余使用年限和基准地价等因素；对于划拨土地的使用权，应当考虑土地使用权人支付的土地开发成本等因素。
방옥정수중국유토지사용권적제전수회본질상시대재산권적정수。수연상관법률몰유명학규정방옥정수중대국유토지사용권시부급여보상화여하진행보상，단재산정수보상제도본신기유충분적법리의거화헌법의거，야유구체적법률의거。방옥정수중제전수회국유토지사용권시，제료응퇴환잉여년한적토지사용권출양금，보상범위환응포괄토지사용자적투자개발이익화해토지적예기증치이익；보상표준응근거취득국유토지사용권적불동방식，즉출양방식여화발방식분별학정：대우출양토지적사용권，응당종합고필해토지적용도、지리위치、잉여사용년한화기준지개등인소；대우화발토지적사용권，응당고필토지사용권인지부적토지개발성본등인소。
This paper is focused on the related provisions of the Regulation on Expropriation and Compensation of Houses on State-owned Land. According to Article 13（3） of the Regulation, the state-owned land use right shall be taken back at the same time when the house is legally expropriated. However, the Regulation has stipulated the taking back of state-owned land use right in housing expropriation without any clear stipulation on the compensation for the advance withdrawal. Although factors such as geographic location should be taken into account when the house is assessed, in fact there is no such value assessment specifically aimed at the state-owned land use rights. When it comes to the state-owned land other than the land for houses, it is even harder for owners to get the market price compensation. Apparently, it is neither in conformity with the principle of justice, nor conducive to protect the legitimate rights of the owners. It is, undoubtedly, an urgent problem whether compensation should be offered and how to carry it out when the house is legally expropriated and meanwhile the state-owned land use right is taken back. First, based on the problems raised, the paper analyses the effect of housing expropriation when the use right of state-owned land is taken back ahead of schedule. According to the law, state-owned land is not an object to be expropriated, but the necessary conditions of taking back the land use right like ＂the public needs＂ and ＂compensation＂ are substantially the same as expropriation ahead of schedule, and their legal effects are similar to expropriation. Therefore, taking back the state-owned land use right ahead of schedule in housing expropriation is in essence the expropriation of property right. The compensation system of property collection, which has been stipulated in the Constitution of the People＇s Republic of China and relevant laws, has not only its constitutional grounds, but also specific legal basis. This paper discusses the scope and standard of compensation for the state-owned land use right in housing expropriation. It is explicitly proposed that the investor＇s investment and development interests and the expected future value of his/her land should be included in the scope of compensation in addition to the refund of the remaining life of his/her land use right when the state-owned land use right is taken back ahead of schedule in housing expropriation. The three kinds of compensation are independent of one another, and comprehensive and unified regulation needs to be formulated to determine the scope of compensation. As for the standard of compensation, the paper proposes that： first of all, a separate assessment system should be established, that is, the assessment of house ownership and that of the land use right should be separated so that the ownership of house and that of land use right can be assessed, calculated and compensated separately; second, the formulation of compensation standard should be based on the different ways that to state-owned land use rights is acquired, namely, ways of selling and ways of allocation. For land selling, factors such as land use, geographic location, and remaining land-lease period should be taken into account to determine the compensation standard. For land allocation, factors like land development cost paid by land users should be considered. In addition, whether the land development cost is paid or not, it is necessary to establish the benefit-sharing system for the value-added part of the land.