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Study On Dilemma Of The System Of Right To The Contracted Management Of Land And Its Solutions

Posted on:2013-06-11Degree:DoctorType:Dissertation
Country:ChinaCandidate:J T WangFull Text:PDF
GTID:1226330395488760Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Since the late1970s and the early1980s, China has implemented the reform of land,making land owned by collectives and managed by families in China’s mainland rural areas.Through a series of adjustment of policy and law, and marked by the implementation of theProperty Law and Land Contracting Law, China has formed the system of farmland withdistinctive Chinese characteristics, which is based on the system of right to the contractedmanagement of land.Owing to this system, farmers who had lost their right of using land inlate1950s were entitled to possess, utilize, profit from and dispose of the land. The systemalso liberates and develops rural society productivity greatly and makes historical contributionto China’s economic and social development. However, it’s obvious that the current systemreform on right to the contracted management of land lacks the guidance of scientific theoryand there exists disagreement among policymakers in the legislative process. Therefore,having been developed for more than thirty years, the system still has serious institutionallimitation and then comes to a dilemma in rural economy and community life, which is one ofthe serve systematic reasons of the three issues about agriculture, countryside and farmers. Inrecent years, some deputies to National People’s Congress have proposed to revise LandContracting Law and reform the system of right to the contracted management of land. It hasbecome a common view among academic community to reform and improve the existing thesystem of right to the contracted management of land. However, what makes the authorworried is that there is no agreement on the orientation of reforming this system among eitherthe academic or practical communities. In view of the utmost importance of the issue of therural land system, the author thinks that it is necessary to conduct a systematic and profoundresearch on this issue, offering a clear view on breaking the dilemma of the existing rural landsystem, and a clear orientation of reforming right to the contracted management of land.These are the focuses of the study. According to Land Contracting Law, the contracting ofrural land includes family contracting and other-means contracting. The former is based oncollective membership while the latter belongs to economic contracting. Since familycontracting is the major contracting means in China’s mainland rural areas, this thesis willfocus on it.Besides the Introduction, this thesis includes four chapters:Chapter I is entitled Overview of the System of Right to the Contracted Management ofLand, which is the basis of further research. This chapter first looks at the historical origin, development and evolution of land contract management right. We can easily get a conclusionfrom the evolution of land contracted management right from the point of civil law, that is, thedevelopment of land contract management right is a transition process from a kind ofcreditor’s rights to a kind of real right, which is referred to as "property-rightization of rightto the contracted management of land”. Secondly, this chapter investigates the nature,characteristics and legal origin of right to the contracted management of land, holding thatthis right is a special land right covering property right, creditor’s right, member ownershipand social security right. Then, this chapter makes an overall summary of the powers andfunctions of the right to the contracted management of land. The current land contractedmanagement right includes the right to own land, the right to use, the right to profit, theright to dispose, right of the real claim, easement and adjacent right, retrograded packetright, right to renew contract, recall right and right to compensate, the right to imposeexpropriation etc., and the right of disposing includes right of rental, right of subcontract,swaption, into equity, limited transfer right and so on, and leading a discussion about whethermortgage right and right of succession should be included in land contracted managementright. Fourthly, this chapter discusses the responsibility of the oblige of land contractedmanagement right and believing that the oblige have the responsibility of using land in areasonable way and performing the right of disposing limited by law etc., giving a deepdiscussion on whether the oblige has the responsibility of abandoning land and reaching anegative answer; on whether people of property right have the responsibility of payingcontract funds and reaching a negative answer. Finally, this chapter carries on a research ofthe value of the land contracted management right system and denoting that land contractedmanagement right is valuable to both the society and the peasants.Chapter two is entitled Dilemma of Land Contracted Management Right. In this chaptersix problems are exposed during the implementation of land contracted management right.This first is concerning the subject system of land contracted management right. Contract Lawstipulates that the subject of household contract is "household" but it has not defined theinternal relationship between the household members, resulting a "no legal basis" dilemmathat once the household internal member asserts to contract the right of land, therefore thejudicial decision can not decide which is right, all this shows the immaturity of the currentsystem of land contracted management right. The second problem is about the time limit ofthe current contracted management right. There is no law defining the belonging party after the expiration of land contracted management right. On one hand, when land contractedmanagement right comes to a deadline, it will bar the transaction due to the problem ofdefining the property right of the center parties; on the other hand, after the expiration of thetransferred land, there also exists a risk of ambiguous property belonging. The third problemis the transfer of land contracted management right. In fact,the current law poses a negativeattitude of land contracted management right,through limiting the qualification of the buyerand the seller and setting a “right of agreement” procedure by economic organization whentransferring, preventing the marketization of contracting land. The succession of right to thecontracted management of land is also a problem. Due to the fact that the current law doesn’tadmit the object status of the succession of land contracted management right, the relatedjudicial practice does into a dilemma. The problem of the mortgage of right to the contractedmanagement of land is also concerned. The current mortgage polices of land contractedmanagement right impair the identity of theory of the law and rights and interests of thepeasants. The last problem is concerning buying shares with right to the contractedmanagement of land.The current land contracted management right faces the problem of anarrow range of into equity and a difficult liquidation in the land contracted management rightinto equity agricultural corporation.The third chapter is "Analysis of Causes of Dilemma of the System of Right to theContracted Management of Land", in which the author carries on a legal theory research ofthe deep causes affecting the system arrangement of land contracted management right andputs forward the basic thoughts settling a series of problems and contradiction. The currentagricultural land system arrangement is a result of the four major contradictions.1. thecontradiction between land ownership and land contracted management right. Actually, it isthe game relationship between rural carders group and peasants group, considering the vagueproperty of ownership subject and the problem of subject absence in land contractedmanagement right. The correct way of revolution in the future is to weaken collective landownership and go on to strengthen land contracted management right which is endowed to thepeasants; this is a property-rightization transition process of land contracted managementright from the point of civil law.2. the contradiction between the attribute of property right ofland contracted management right and its attribute of social security right. It is the so-called“social security” function assumed when contracting land that make the policy-maker full ofworries in the aspect of the revolution of agricultural land system. Through an analysis of this issue, this article holds the opinion that the so-called land “social security” is unsustainableand should be deserted for the vast side effect.3. the contradiction between the newly added“farmers with land” and “the land not being increased with the increase of household, the landnot being reduced with the reduction of household”. The contradiction has become anoutstanding problem in some rural areas; if the problem can’t be settled in a proper way, thereappears the “restoration” of administratively adjusting land contract and endangers the basisof the current quasi land contracted management right in rem. In fact, in the recent years,deputies to the National People’s Congress from many places put forward the modification of“land contracting law” and advocate to recover collective economic organizationadministrative land contract. This view is worth valuing. For this contradiction, the authorthinks that the only right way is to realize complete property-rightization of land contractedmanagement right as soon as possible, on the basis of which we should realize the freelycirculation of marketization of land contracted management right so as to settle thedemanding problem of land for newly added farmers with land.4. the contradiction betweenthe practical status and the ought-to status in the legal relation of land.The practical status forfarmers in the legal relation of land is the instrumental status in grain production with acharacteristic that the farmers just get the value in use in contracting land, however, based onthe idea of equal human rights, in the legal relation of land, the ought-to status of thefarmersis a property subject status which can contract the exchange value of land in themarket. To achieve this, we should transfer the status of the farmers through modifying thelaw.Chapter Four mainly concerns the reform and improvement of land contractedmanagement right under the view of secondary property-rightization, which is the focal pointand foothold of this study. Based on the comparison between China’s and overseas farmlandsystem and the current situation of China’s farmland system, this chapter puts forward thetheory to guide the system of land contracted management right in the future. What’s more, itgives the specific measures and suggestions on legislative act. The main contents are asfollowing.1. Based on the analysis and study on current farmland system in England,America, France, Japan, Korea and Taiwan region in China, it summarizes the inspiringexperience for China’s farmland system reform in mainland.2. The theoretical study onsecondary property-rightization of land contracted management right. Secondaryproperty-rightization of land contracted management right comes from the Property Law which was enacted in2007. According to it, there are two stages in the transforming landcontracted management right into property right. The fist stage is the first process of realizingproperty right. It mainly aims at giving the farmers the right of farmland use and the right ofprofitting from their land in long terms, which will solve the problem of grain production.This goal has come true. The second stage is the second process of realizing property right.Based on the achievement of the first stage it aims at giving the farmers complete propertyright. Therefore, they can have land contracted management right with complete propertyattribute. Then through marketing circulation of contract farmland, the harmonious unitybetween effective allocation of resources and the obtaining of market conversion value can berealized. If the first stage solves farmers’ problem of food and clothing, the second stage willmake farmers rich. While the first stage realizes the use value of the land the second stage willrealize the market conversion value of the land, which corresponds to the urbanization of thepeasant. It will also reduce the quantity of peasants and promote the land to be moderatelycollected, which is in keeping with the theory of benign development of agriculture. Thisthesis illustrates the connotation of secondary property-rightization and also studies thenecessity, viability and system reform of it. Besides it discusses the balance of all parties’benefits. With these discussed above this thesis has formed the theory frame.3. The specificmeasures and legislative suggestions on reforming and perfecting the land contractedmanagement right under the guidance of secondary property-rightization. It includes:summarizing the land contracted management right’s main part system on the basis ofscientific definition of farm house hood’s inner relationship; putting forward the legislativesuggestion on having land contracted management right permanently; giving the specificsuggestions on realizing marketing assignment of land contracted management right andstudying on the legislative measure to avoid the risk in the process of marketing assignmentof land; suggesting that the object position of land contracted management right’s inheritanceright should be acknowledged and perfected; suggesting to acknowledge and perfect themortgage right and share-holding right of land contracted management right; making theright of land contract managerial authority legal and improve the right; regarding thecontractor as the party and main part of compensation in the land expropriation; limiting thecontract-issuing party’s right; setting up and improving registration system of land contractedmanagerial authority.4. Discussing the forming of related system of land contract managerialauthority’s secondary property-rightization. We should perfect the law systems and build well-regulated market systems. What’s more, it is necessary to realize the social security inthe form of fund and the system reform of the urban and rural societies’ administrationincluding the household registration.
Keywords/Search Tags:right to the contracted management of land, secondaryproperty-rightization, contract land transferring, amendment of Land Contracting Law
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