On The Real Right System Of Rural Land In China

As a so-called big country, especially a big agrarian country in the world, the bigness of China doesn't indicate the high average rate of cultivate land owned per person but a big population, an absolutely large amount of farmers with their high proportion in the population. As regard to the above mentioned average ratio, China is 1/3 lower than that of the world and is still lower concerning the cultivate land for each laborer. This serious situation of the country, i.e., a sparse land with a large population, initiates theoretical studies and thinking about the rural land, which results in various innovational projects on rural land system. This in turn shows the importance of the problem for the scholars on the one hand, and the imperfectness of the current system of rural land and the poor feasibility of undertaking projects on the other hand. In fact, the problem of China' rural land is not simply related only to land, but also has had a close relation with "Sannong" (i.e., farmer, country and agriculture), which is a hard topic no one can jump over; otherwise, one can never be to the point when discussing the problem of the rural land. With the world views and methodologies of historical materialism, and in theoretical approaches of the "dualistic framework of real right", this thesis analyses the land problem of rural China, and gives a theoretical exposition and a systematical reconstruction of the real rights of rural land in China. Apart from the introduction, this paper is divided into four chapters.In the first chapter, the relations between rural land system and social system are stated. Based on the essential theory of historical materialism, i.e., superstructure is controlled by economic basis, and through land reforming cases caused by social revolutions or national independence movements in different countries and districts after World War II, this paper explains that it is the basic economy that reflects the corresponding social type, and furthermore decides the ownership system nature of real rights of rural land. Socialist land reforms usually take the form of thorough revolutions to abolish feudalist ownership system of land so as to establish a land ownership system of farmers, which is quicklytransitted to collectively-owned system of farmers with the purpose that financial and material resources of agriculture can be invested in the industrial construction of the country; whereas the land reforms of capitalist countries always take the form of mild revolutions, in which only utilization patterns of rural land are changed instead of changing the basic private ownership of land. Various law systems can also have deep influences on real right system of rural land. Different from the Civil Law system, which, by borrowing much from Roman Law , develops its conceptual systems of land-centered real right system of rural land, the Common Law concerns more about real possessions and utilization of rural land, and accordingly a different land-utilization right system comes into being. China, Japan and Western Europe also have their own real right systems of rural land in context of their different historical backgrounds. All important changes of production modes of rural land in China after the liberation of 1949 can be seen in the changes of the ownership systems together with their implementing ways. Consequently, the reformations of real right system of rural land go with these changes. To be more specific, the following processes of changing rightly show the decisive impact of economic system on system of real right: farmers ownership and utilization in the time of land reformation movement; farmers ownership and collective utilization in junior agricultural cooperation movement; inchoation of collective ownership of land in the senior agriculture cooperation movement; the stage of collective ownership and utilization featured by "owned by three-grade and based on brigades"; the collective ownership and farmer utilization of the contract responsibility system of family united production. Nevertheless, because of the view of absolute right of ownership inherited from private ownership system has rooted deeply in the area of real rights of land, and also for the historical inefficiency of the planned economy to deal with land relations, such unpleasant facts as ambiguity of the entity, complication of the type and disorder of the circulation exist in the present real right system of Tural China.The logical starting points of establishment of China's Tural land real rights are the main arguments of the second chapter. First a comment on the limitationsof various innovation projects of real right system on rural land is given, focusing on the nationalization, privatizing and double features of ownership rights. Then in referring to the basic theories of historical materialism, i.e., superstructure must be suited to economic basis, and in accordance with the special situation of China's rural land, the author points out the misunderstandings of Marx's statement of "reconstruction of individual system of ownership" by those who prefer the privatizing of ownership rights of rural land and the double-sided projects of reformation. He also argues that as the most important productive resources in the socialist productive relations of rural China, the collective ownership system of rural land is a historical inevitability. And more, the necessity of implementing the collectively-owned system is analyzed respectively from the aspects of the political, economic and social function burdened especially by China's rural land; the feasibility of collectively-owned system is supported by the acceptance of social mentality of farmers and even the whole nation, also by the sufficient social practices and policy and law preparations. Thus the first logical starting point is achieved: it is a must to adopt the collectively-owned system when planning the rural land system of China. In order to achieve the second logical starting point, the author suggests that it is the natural connection between the traditional theory of real rights and the private ownership system, and also their self-limitations, that gives an incorrect description of both the performing pattern of public ownership represented by collectively-owned system and that of collective ownership represented by contract responsibility system of family united production. The "land division" and "individualism" in rural China are imagined out on the base of the theoretical system in the view of absolute rights of ownership, and the result is that, the ill-performance of ownership-right-centered theory, when dealing with the relationship between the ownership and utilization of rural land, either causes invalidation of the rights and interests of the land owner or brings damages to the rights of the farmers utilizing the land. Then the author turns to the "dualistic framework theory of real right" to explain the natural separation of the property ascription and utilization in a society with publicownership system. Holding a equal and independent view of real rights and confirming the mutual respects and balanced interests of property ascription system and the property utilization system, one is able to locate rightly different law relations among real rights of land, to avoid the separation between law and reality as regarding to real rights problem of rural land, and then to protect well the rights of the rural land belonging both to the farmer collectives and farmer individuals. Thus, the second logical starting point comes into being: the use of the "dualistic framework of real right" as the theoretical footstone to construct the real right system of rural land. With the two logical starting points at hand, the situation and legitimacy of rural land owned by farmer collectives can be described separately by ownership and ownership right of rural land; the situations and rights of rural land utilized by farmers can be described as possession and possession right of the rural land. In this way, a dualistic framework system of real rights of rural land is established. In addition, the ownership rights of rural land mean the ownership rights of farmer collectives, and the possession rights of rural land stand for the utilization right of farmers to the rural land of farmer collectives, including four types of possession rights: the possession rights to land for farm use, the possession rights to land for farmer's housing use, the possession rights to land for rural construction use and the possession rights to neighboring rural land use.The re-establishment of the ownership rights to rural land is the main concern of the third chapter. In accordance with the conception of equal real rights, a clear identity of the State .as the owner of land and as the manager of land can be recognized, so as to do away with the idea of "more perfect with more public" and to define specifically the state interests and the social public interests; in accordance with the conception of equal protection of property in private law, the position of ownership rights to rural land in private law may be raised so as to keep it at an independent equality to the ownership right of the State regarding to private law. In respect of entity system of ownership rights, the land owned by the State and utilized by farmer collectives will be owned by farmer collectives in the light of the requirement for collective ownership system of rural land, and with thepurposes to satisfy the realistic needs of farmer living and rural development as well as to balance to a extent the interests between farmer collectives and urban areas. And more, one-grade ownership replaces the three-grade ownership of the farmer ownership rights of rural land to do away with plural entities of ownership rights of rural land, which have been the reasons for vacancy or "offside" of entities. The simplified entity of ownership right in rural land becomes a single type of entity, or village farmer collective, with special civil entity holding the same law character as the State, which decided by the speciality of the entity of public ownership system. The collective ownership system of rural land determines the wholeness and the part relation between the farmer collectives and farmer individuals, accordingly, the membership rights of farmer individuals as colletive members can only be validate when the whole members exert their membership rights ( or collective rights, actually should be collective power); and it also corrects the idea that "farmer individuals are the entities of ownership rights of rural land, or the ownership rights of rural land belong to co-ownership"; at the same time, it gets rid of the "zongyou" (all-owned) explanation of primitive system of public ownership when referring to the collective ownership system of rural land. Concerning object system of ownership rights, stress shall be put on adhering the rules stipulated or implied by the State Constitution when deciding the land area of rural land, e.g., the rural land not clearly prescribed to the State by law deductively belongs to farmer collectives; also the principles of traditional theory of real rights to decide space area shall be stopped, instead, a principle within laws shall be made, according to which the spacial area not clearly written by law will not be within the grasp of ownership right object of rural land. The rural land is defined as one with versatile agricultural use and non-circulation character, that is, rural land can only directly used for management of agriculture production or for the service of agricultural production management, and the non-circulation character of rural land is decided by the natures of public ownership system of rural land, of the living guarantee and of the serious scarceness of land. As for the contents of rights of ownership, a division of therights boundary of ownership rights of rural land shall be given. Under the public ownership system, there is a separability between the entity of ownership rights^ and the entity of utilization rights, and there are the non-circulation of the object of land ownership rights and the restrictions of civil law to the use of land. All these will not make the ownership rights of rural land take the form of possession's power and function, and utilization's power and function will give a lawful restriction to the power and function of disposal, and will make the power and function of income and management well represent the ownership rights of rural land. As for the neighbouring obligation, it is the least legal obligation sticked to rural land to offer convenience and respect for each other, the principles of which are prescribed by law. The public interest purposes and compensation criteria shall be redefined in order to avoid the "not-to-the-point" explanation to the criterion of requisition of land and the "symbolic" compensation criteria. A civil law restriction to planning and using of rural land shall be adjusted in accordance with the guarantee of the security function of the food supply of the rural land and its social stability function, and under the precondition of the living interests of the whole country, various interests of rural land shall be measured in order to limit the planning and using of rural land in the name of the country's sovereignty and in the form of law. In the aspect of the implementation and protection of ownership rights, village collective economic organization or villages' committee is proposed to be the executing entity of the ownership rights of rural land, and concrete executing conditions are regulated, — these are accomplished according to the natural separation between the ownership right entity and the implementing entity in the condition of public ownership system, and in the light of the local situation as well as the interest standard and efficiency standard. Equal protection principles and stable contract relation of land shall be kept going, and corresponding protection measures shall be taken as regard to the invasion of ownership rights of rural land. Judicial Tights shall replace administrative action to affirm rights of land when solving right dissensions over land, and in this way, the system that judicial decision is the final power to settledisputes can be reestablished.In the fourth chapter, possession rights of rural land are reconstructed. The point is to construct legal relation of possession rights, focusing on the utilization of rural land by farmers, so as to form a double relation among farmers, village farmer collectives and other non-real-right parties. "Farmers", as a versatile and developing conception, needs to be gradually transitted from an identity to a profession, which can finally make farmers be the realistic entity of laboring people collectives. The object of possession rights of rural land is a more featured description of the rural land as possession right object, which shows more specific traits and allows the object of possession rights limited circulation ability within object of ownership rights. The modalities of power and function of possession rights of rural land have their specialities, which are embodied as that the power and function of possession is the most essential modality and is the base of possession rights. Different from the authoritative form of the ownership rights of rural land, which usually is in the form of pure right, the modalities of power and function of rights of possession are with obligations and responsibilities, and more, the possession right has special power and function of disposal when referring to the partial utilizing values of rural land. The enactment of the possession rights of rural land is strictly confined with purposes, the reasons of which are the neighbouring obligations brought by possession rights themselves. They are the least legal obligations of one party with possession rights to a neighbouring one with the possession rights. The farmers' independent exertions of possession rights of rural land and their special legal protections are emphasized, and the possession rights of rural land can not usually be enforceable objects. About the legal characters of contract management rights of land, both the view of real rights and that of the creditor's rights cannot give a full explanation. Actually it belongs to comprehensive rights, sometimes in the occasion of real rights, sometimes in creditor's rights and even in other rights (such as rights and interests in public law including contract competency and membership qualification which contains rights and interests of social security). Possession rights of land for farm use onlyspeak for the real right part of contract management of land. The real entity of it is farmer who has registered permanent residence identity. The future entity shall confirm farmer competency in terms of occupation standards, namely whether or not the person has the competence of agricultural production and management. At present and for quite a long time it is better that the main entity should still be natural person instead of legal entity. As entity of possession rights, farmers own the self-determined rights of agricultural production and management, continue to possess and utilize land for farm use in the whole process of agriculture production and acquire natural agriculture income. They also carry out special power and functions of disposal and take on public and private law obligations of the corresponding land. Land for farm use can only be circulated in order, and the conditions of the "order" is: to keep the farm use of land; to guarantee "the permission right" of village farmer collective as owner; to make a difference of in-circulation from ex-circulation for more advantages given to the in-circulations; to always keep the possession rights of land for farm use within possessions; only the cessionary of real utilization of land can have possession rights to land for farm use and at the same time takes on specific obligations of the rural land. Through a new annotation of land for rural construction use and its requirement to entity and object, the author concludes that the entity of the land is the generalized-called farmers, and that the divisions of village enterprise construction and village public construction are not scientific. He proposes to carry out circulation of possession rights under the precondition of maintain farm use to a broad sense; he also considers that possession rights of land for fanners' housing use should give performance to indemnificatory, non-management and coexistence with residence, that the conditionality of basic rights, the multiformity of the possession, and that the implications of disposal should be well stressed as for the possession rights of village neighbouring land.