On The Legal Guarantee Of The Transfer Of Management Right Of Rural Land Contract

To study the transferring of management right of rural land contract with Chinese characteristics, it is not enough to touch only the micro areas such as nature, content ,validity and way of change, because the study from the micro side can only address how to transfer, that is, the manner of the transfer, but can not address the problem how to promote the transfer, which requires a macro research perspective, that is ,to integrate the transfer of management right of rural land contract to the national agriculture industrial policy of specific time. What it aims to address are how to form the reasonable market price of the management right of rural land contract, how to make peasants without extra worries after leaving the land and the transfer of the management right of rural land contract voluntarily, how to promote the comparative advantage of agriculture industry and therefore make agricultural production operators get benefits when carrying on the agricultural production and willing to transfer the management right of rural land contract. Based on this knowledge, this article is of the basic idea of combining the micro and macro perspectives, with the latter as the key and the foothold, aiming to analyze comprehensively the legal system of the transfer of management right of rural land contract.Starting with the essence, content and form of the peasant collective land ownership, and combining the agriculture industrial policy, the legal system, and the operation practice of different social and economic development eras, this article studies the right allocation of the peasant collective land ownership, with the aim of providing the solid theoretical basis for the transfer of management right of rural land contract. On this basis, according to the particularity of the agriculture industry in China and the actual condition of agricultural production and operation, three system ideas are mainly put forward. First, bettering the existing regulation system on the transfer of management right of rural land contract aims to provide the related transferring activities with the legal model ,which accords with the legal reason and fully meets the demand of practice ; second, constructing the legal system by which the state promotes agricultural production and operation so as to promote the comparative advantage of the agricultural industry and promote the formation of the circulation market and conversion price of the management right of rural land contract; third, according to the rural social security realities of our country, reform the current legal system of rural social security so as to weaken the function of the social security of the management right of rural land contract, to strengthen its economic function, and to make fully play the social security system in the members of rural society. In this way, root out the worries of peasants after they leave the land, and make them willing to leave the land when leaving the home.Overall, the main views can be summed up as follows.Based on the related rules of Germanic one system theory from abstract ownership theory of Roman law, whole right theory and total quality division theory, this article newly explains the collective land ownership of peasants in China and the corresponding rules. This article holds that, at first, the essence of peasants collective land ownership is that all the members collectively have the ownership; its way of realization is to split its all functions into two levels of rights between the collective organization and its members. One is that the peasants'collective organization enjoys the collective right of dominion of the collective land including management right and disposal right. Another level is that the members of the peasants collective organization have the management right of the rural land contract which includes possessing, utilizing, seeking profits and disposing of rights on the management right of rural land contract, and which is the legal usufructuary and can be transferred and inherited; operation of members right must be reasonably constrained via groups; the combination of two right layers forms a complete peasants collective land ownership, any right layer cannot be, like the Germanic law, a separate ownership type. What's more, since the peasants collective land ownership formed, the change of agricultural production and operation system has been the vicissitude of peasants collective land ownership, that is, the change of two levels of right under the current agricultural policy with right configuration changes and interaction rules; under the background of the present dual operation system and the management right of rural land contract ,based on different subjects of right allocation, the realization of peasants collective land ownership shows the duality, namely, the right allocation mechanism between the collective organization and its members ,and the right allocation mechanism between collective organization and non-members, and the two have different regulations to follow. At last, the transfer of management right of rural land contract of peasants collective land ownership is a new mechanism after the peasants collective ownership is divided, through which members achieve its inner interests. Its essence is change, polymerization, disciplinary action in particular subjects of the management right of rural land contract .Like the duality of the peasants collective land ownership, the transfer of management right of rural land contract also presents the dual, and follow different regulation principles and rules. This article expounds the construction of legal system and the factors affecting the system concerning the transfer of management right of rural land contract. It holds that the factors mainly are agricultural industrial comparative advantage, the status and role the country and collective organizations play in the transfer of management right of rural land contract, rural social security system, national benefit policy and so on; in the existing social economic conditions of China, besides the legal regulation on the basic transfer method, perfect laws and regulations shall promote the market price of management right of rural land contract, better the market of management right of rural land contract ,weaken the social security function undertaken by the management right of rural land contract ,and embody the benefit policy and ideas in this period of China.This article puts forward the necessity and possibility of constructing legal system to promote the agriculture production and operation in the national legal security system of the transfer of management right of rural land contract, and designs the specific contents of the legal system. The author holds that, because of natural agricultural inferiority, the industry is on the objective trend of low comparative advantage, but agricultural industry plays an irreplaceable role in the political, economic and social stability of a country, which makes the country have the responsibility and motivation to take measures to promote the development of agriculture; the state promotes the legal system of agricultural production and operation through ways including mandatory promotion and guiding promotion and financial aid, among which financial aid can best represent the idea of the state promotion,taking on financial subsidy as the typical form; the legal system of the state to promote agricultural production and operation mainly includes agricultural taxes, national agriculture investment, agricultural subsidies, the policy-based agriculture insurance ,agricultural science and technology promotion and agricultural professional education, agricultural finance and so on.