On Dispute Resolution Mechanism Of The Contracted Managing Rights Transfer Of Rural Land

In our country, the decentralization and immobility (namely the rights took by family unit but can not transfer) of contracted management rights of rural land is one of the main factor that affects land using and handicaps agriculture development. To use land efficiently, the main approach rests with land transfer. There is a long time to establish the legal system of contracted management rights of rural land in our country. Nowadays, the transfer of contracted management rights of rural land has become a popular phenomena, and the transfer form is varied from legal subcontract, lease, interchange, transfer, buying a share, mortagage, to inheriting, substitute plough, entrust, contracting after lease and other special lease. The transfer of contracted management rights of rural land bring disputes also, and accordingly need dispute resolution mechanism. To the disputes of contracted management rights of rural land, the diversified dispute resolution mechanism is necessary. In our country, the transfer parties of contracted management rights of rural land can resolve their disputes by four forms:pacification, intermediation, arbitration and litigation, and pacification is self-relief, intermediation and arbitration are social relief, litigation is public power relief.Dispute resolution of intermediation have a long time in our country. To resolve the disputes of contracted management rights of rural land, the significance of intermediation is very important. Among all the disputes resolution forms, villagers’ committee intermediation is the most popular one. Villagers’ committee intermediation is one of forms of people intermediation which has contributed very much in the disputes resolution of contracted management rights of rural land. However, our villagers’committee intermediation still exist deficiencies such as administration leading, informality, lacking intermediation effectiveness. To use villagers’committee intermediation efficiently, it is necessary to eliminate administrative factors from villagers’committee intermediation, and ensure the legal right of the parties and intensify the effectiveness of intermediation contract. Town and township government intermediation is one kind of instructional specific administrative act essentially, and the function of administrative intermediation is positive. However, the use rate of administrative intermediation is actually low because there is unfair factors in the administrative intermediation. In order to overcome the unfair factors, the town and township government intermediation should be public and improved.In2009, Law of the People’s Republic of China on the Mediation and Arbitration of Rural Land Contract Disputes formally established our rural land contract arbitration system, and many area are establishing arbitration committee of rural land contract according by the law. Rural land contract arbitration has such characters as special scope of accepting cases, unilateral and optional arbitration procedure start-up, non-final arbitration. Compared to villagers’committee intermediation, arbitration is more authoritative. Compared to town and township government intermediation, arbitration is more fair. Compared to litigation, arbitration is low cost, professional and humanistic. However, our rural land contract arbitration system also has many limitation, such as administrative arbitration, violation of autonomy of the parties’will, litigant arbitration procedure, non-final arbitration. The improvement forms of our rural land contract arbitration system includes eliminating administrative factors, respecting autonomy of the parties’will, simplifying arbitration procedure, accepting final arbitration, emphasizing the combination of arbitration and intermediation.One of the basic purpose of litigation is to resolve disputes. In recent years, the function of litigation in resolving disputes is recognized any more. The justice principle of disputes of contracted management rights of rural land is "emphasizing intermediation", and intermediation also accord with our rural dispute resolution tradition. When judge disputes of contracted management rights of rural land, our courts should pay special attention to such typical problems as following:(1)the effectiveness affirming of transfer contract;(2)the disposal of transfer fee;(3) the disposal of contract ambiguity;(4) the disposal of buying a share dispute. In fact, the use rate of litigation is low, which is more outstanding in remote area. The low use rate may bring problems, for example, the parties’ due legal rights deprived and dispute resolution not thorough. The low use rate may result from our traditional non-litigation and litigation repulsion culture, and high litigation cost and lacking justice. To advance the litigation’s use rate, we must reduce litigation cost and ensure justice.