On The Logic Of Rights Concerning China's Rural Land Contracted Resumption System

Currently, china is faced with issues of agriculture, farmer and rural area,which include the following three aspects: the high differentiation of the peasant groups, among whom the ground distribution has failed to show social equality, and the conflict between man and the ground has become more contradictive; the unwarrantable access to land sources is often seen and most of the cases are anomic; the integrant supply of public cultivating facilities are seriously insufficient; the legitimate rights and interests of peasants are often aggrieved. Theoretical researches of rural land contracted resumption and the construction and effective enforcement of rural land contracted resumption system play an important role in the solution of these issues. This dissertation focuses on a comprehensive study of patterns of legal provisions on China's rural land contracted resumption system and its operating mechanism.Firstly, the legal texts concerning the current rural land contracted resumption system are analyzed, and are abstracted into the characteristics of this system, on which the author points out the current pattern is the administrative power-based pattern. After the research of actual running of rural land contracted resumption system based on the administrative power-based pattern, it is found that this system has bogged down due to"the lack of inner motivation"in the administrative power-based pattern, and it has led to large number of anomie. Therefore, the author suggests that directive concepts be altered to realize the fatal transformation from the administrative power-based pattern to the right-based pattern. That is, Through the exertion of private rights without acting public power, the rural land contracted resumption system is proposed to be the right-and-obligation driving device, in which the mechanisms of rights, obligations and responsibilities impulse the establishment of order, to form"the diagonal benefit interaction"instead of"the longitudinal subjunctive compulsion"and to perform the expected function.Based on the analysis of related system causing the extinction of usufructuary right in the traditional civil law, the issue of rural land contracted resumption is turned successfully from a daily affair into a legal one, which establishes the solid theoretical fundament of"right-based pattern"of rural land contracted resumption system to solve the problem of rural land contracted resumption under the current legal system. The theoretical system of right of termination is deepened and evolved on the basis of the analysis of the related basic theories of right of formation and several fundamental questions, including the definition, characteristics, the basic concepts of"right of termination", and its position in the categories of right of formation. Thereby, the right of termination is justified as right of disposition in the interest of realizing the joint of the right of termination and property system and positioning the attribute of"right of termination"in Property Law. It sets up the theoretical fundament and analyzing platform for the consequential research on the starting, executing and effecting mechanism of the right of termination. Finally, it is justified that"the legal structure of rural land contracted resumption can only be interpreted as extinction of rural land contracted management right with owner's right of termination"through the following four dimensions: fulfillment of expected legal effects; protection and balance of related parties'interests; operability of mechanism , and public choice in continental law family.The research findings hereinbefore set up the theoretical fundament and analysis platform for the further study on the starting, executing and effecting mechanism of rural land contracted resumption system. Firstly, the acquisition of right of termination works as the starting mechanism of rural land contracted resumption system, and the acquisition of right of termination refers to the state of the contract-issuing party enjoying the right of termination. On the basis of interpretation theory and legislation theory, the point of view of"ought-to-be legal causes of rural land contracted resumption"is suggested in the logic of researching from normative interpretation to system design with the methods of application of analogy and reverse inference. Secondly, the author integrate the legal rules concerning causes for occurrence of rural land contracted resumption into a normative system with clear structure, strict logic, and accurate reflection of legislative intent. Thirdly, the author suggests that the substantive requirements of right of termination is the fulfillment of legal causes of rural land contracted resumption, and that contract-issuing party has finished the due prepositional procedure should be made procedural requirements of right of termination, so as to regularize contract-issuing party's act, to press him perform his legal duty, and to strength the protection of contractor's interests. Finally, the author summarizes and analyzes different points at which contractor can acquire right of termination.Therefore, the implementation mechanism of rural land contracted resumption is reconstructed with the theory of exercise of right of termination. The system is designed materially as following: Firstly, taking whether court decision is necessary for the judgment of fulfillment of legal causes as the criterion, the author distinguishes right of termination that is solely a right of formation from right of termination that is also a right of action to establish the two ways to exercise right of termination: through unilateral declaration of will, and through action of formation. Secondly, the scenario of the system is proposed with the consideration of preventing the abuse of right of termination, protecting the benefits of counterparty (holder of rural land contracted management right) and maintaining the clarity and stability of the status of rural land contracted management right. Thirdly, the author defines and analyzes the action brought by land holder to terminate rural land contracted management right including nature of the suing act, content of claim, both parties'burden of proof, objects investigated by court, and scope of validity of court decision.Finally, the study on the effecting mechanism is expected to provide a solution to the important theoretical issue that which pattern"Chinese rural land contracted management rights"should follow. According to the fundamental principles of current property law, the authors starts from the basic idea, legal effect of exercise of right of termination is effect of property right change caused by extinction of rural land contracted management right, and studies the related current legal provisions on the pattern of rural land contracted management right changing, on the foundation of reasoning the relationship between the correlative provisions. Having finishing exploring the pattern of rural land contracted management right changing, the authors discusses effectiveness conditions of right of termination going into effect through legal act and right of termination going into effect through court decision. The change of rural land management rights is supposed to abide the creation mode of publication stipulated in the 6th provision of Property Law, that is, registration is no required, but other legal and effective publicity ways are required. Lastly, upholding fundamental ideas including balance of both parties'interests, preservation of object's social and economic value, and the principle of fairness and proportionality of law, the author proposes the system design and makes legislative proposals on how to manage rural land contracted, its attachment and the right of holder of rural land contracted management right to ask to continue contracting the land.