Study On Perfecting The Legal System Of The Double-tier Management System Of Rural Areas

0ver the past thirty odd years of reform and development, the double-tier managementsystem of rural areas, established in rural reformation at the end of1970′s, so far, has beenstill in function as a rural fundamental management system and has been vastly consolidatedas well as improved, which is proved by the practice in conformity with agriculturalproduction characteristic and socialist market economic system. But what need to face up to isthat, for the profound changes of the inside and exterior system environment and core goals,the system confronts some new challenges during operation. on this, the academia focus invarying degrees and the study on certain problems has reached the very depth, except for lackof direct and systematic research with the theme of “the double-tier management system ofrural areas”. In addition, the most obvious shortcoming is that the current study is mainlyfrom the angle of economics, history and sociology, but seldom has the academic circleattached the legal angle, especially the systematic research from legal perspective.After the founding of New China, mainly, it is the policies of the Party and state thatpromote the reform of rural fundamental management system as severe shortage of legalsystem, which makes the reform, development and stability of the rural fundamentalmanagement system empty of robust system support. Although in the process of deepeningrural economic reform, the government has provided legal guarantee for the stability anddevelopment of the rural fundamental management system through a series of laws andregulations relate to the system hereto directly or indirectly, there is no denying that legalsystem concerning it is inadequate in different degrees. Thus, while the function of policiesshould not be obliterated, what is more important is that the rule of law, in the circumstanceswhere China now adhere to the socialist market economy and the basic principle of “rulingthe country by law, building a socialist state under the rule of law”, should guarantee thedeeper reformation and development of the double-tier management system of rural areas, onone hand, turning the effective policies into laws timely, on the other hand, according to thedemand of rural economic and social development establishing a legal system to promote thereformation of the double-tier system. In this way, positive interaction between laws andpolicies could be achieved.In view of various shortcomings found in existing research, on the basis of comprehensive analysis of the process of institutional changes from the establishment of thedouble-tier system to its reformation after that, this thesis, keeping to the stand ofconsolidation and development of the double-tier system, making an overall use of historicalanalysis, normative analysis, positive analysis and comparative analysis, gives the focalanalysis of the existing legal problems in internal and external institutional environment of thedouble-tier system of the new period, and then suggests some specific countermeasures.Except for the introduction and conclusion, the thesis is divided into five chapters.Chapter1describes the formation and establishment of the double-tier managementsystem of rural areas. This part tries to demonstrate clearly that, viewing the related historicalmaterials especially the policy documents issued by the government, how the double-tiermanagement system of rural areas is formed gradually and what was the system at its initialestablishment. In general, the double-tier management system of rural areas, reflecting as thesystem framework of household contract management together with collective unifiedmanagement initially, develops from the highly unified management system in agriculturalcollectivization in1950s and especially the people′s commune system. In particular, on onehand, the double-tier management system of rural areas has rejected the management typeswith the characteristic of unified management, which uses various forms of rural collective(economic) organization as single operator. On the other hand, this system has inherited somevital components, such as the collective ownership of rural land, rural collective economicorganization and so on, of the rural fundamental management system formed by ruralcollectivization and people′s commune movement on the basis of land reform after thefounding of People′s Republic of China. The rural fundamental management system of ourcountry, as it were, after founding of new China, has adjusted itself in a broaden sense of“double-tier management”, but as reflected by the political factor, economic factor, etc,collective and unified management has occupied dominated position for a long time, and onlywith a large sum of problems accumulated together with the changes of macro environment,did our country establish the double-tier management system of rural areas based on thehousehold contract responsibility system with the combination of the unified anddecentralized management.Chapter2is the institutional changes after establishment of the double-tier managementsystem of rural areas and the existing legal problems. This section, through summarize andanalysis of the concerned policy documents issued by the government, aims to systematically reveal the changes and certain important institutional arrangement of the double-tiermanagement system of rural areas after more than30years′reformation since itsestablishment, on the basis of that pointing out the prominent problems in legal construction.In general, on one hand, Chinese leaders have continued to modify the connotation of thedouble-tier management system of rural areas. for example,“on the basis of the householdcontract management” replaced “putting emphasis on the household contract management”,and shaping into a formal expression of“rural collective economic organizations practice thedouble-tier management system that combines unified and separate operations on the basis ofthe household contracted management”which is still in use today. On the other hand, in fact,the innovation of the mode of unified management having been fully affirmed and supported,in practice three kinds of unified management mechanism which mainly rely on the ruralcollective economic organization, the farmers′cooperative economic organization and theleading enterprises in the industrialization of agriculture, having been established. At the sametime, with the build of the socialist market economy system and the basic principle of“running the country according to law and building a socialist country governed by law”,government progressively emphasis on administering agriculture and the rural according tolaw and have passed a series of laws and regulations direct or indirect concerning thedouble-tier management system, providing important legal safeguard for consolidation anddevelopment of the system. However, with great achievements of the reformation and legalconstruction, some problems still exist. For example, the official definition of connotation ofthe double-tier management system is inconsistent with the actual situation, especially theconnotation of the unified management needed to be broaden and define formally as well asscientifically; the legal system aiming to implement the policy of “stabilizing the rural landcontract relationship and to give the farmer more complete and secure rights to the contractedmanagement of land” which plays a important role in improving the household responsibilitysystem, has shortcomings in various degree; the legal systems are insufficient which promotethe rural collective economic organization, the farmers′cooperative economic organizationand the leading enterprise in the industrialization of agriculture and then implement theunified management system.Chapter3is general analysis of the reformation and perfection of the double-tiermanagement system of rural areas which illustrates the reformation and perfection of thedouble-tier management system of our country nowadays even hereafter from macro perspective. This section, through the combination of the historical retrospect and currentlyexamination of the double-tier management system in the first two chapters, tries to clearlyindicate the proper direction for our current endeavor and the basic principles needed tofollow in the process of implementing and perfecting this system, and meanwhile paves theway for the last two chapters. The section concluded that: the connotation of the double-tiermanagement system of rural areas should be defined as the double-tier management systemon the basis of household contract management with the combination of unified managementwhich uses agricultural industrialization operational organization or varied agricultureproduction organization as media. This means, on one hand, based on upholding the collectiveownership of rural land, our country should give the farmer the contracted land managementrights over a long period of time but having to guarantee, on the other hand, as far asimplementing the rural unified management system, it is to foster the farmers′cooperativeeconomic organization, the leading enterprise in the industrialization of agriculture and othervaried agriculture production organization, and then based on that to improve the level offarmers organization, agricultural industrialization and of production of scale that acts as amajor channel, instead of only reshaping the rural collective economic organization andperfecting related legal system. The other conclusion of this chapter is that there are threefundamental principles needed to follow in the process of deepening the reform of thedouble-tier management system of rural areas: to balance the relationship of farmers′interestand national interest on the basis of respecting the dominant role of the farmer; to balance therelationship of market regulation and state regulation on the foundation of following themarket-oriented reform; to balance the relationship of legal guarantee and policy guidance onthe basis of attaching importance to legal guarantee.Chapter4is the legislation improvements of the rural household contract managementsystem which responded to the existing legal problems of the rural household contractmanagement as indicated above from the view of specific legal system. It is not doubtable thatthe core of the rural household contract management lies in the household contractmanagement of the land, and meanwhile the key to stabilize and perfect the system ofhousehold contract management lies in stabilizing the rural land contract relationship andgiving the farmer more complete and secure rights to the contracted management of land.Based on this, this chapter puts forward some measures to perfect the legal system ofhousehold contract management in rural areas. In the first place, to stabilize the rural land-contracted relationship, the legal system concerning the term and the succession of theland contractual management rights as well as the adjustments of the contracted farmlandshould be further completed. Then, on the foundation of proper regulation, the landcontractual management rights of peasants should be allowed to mortgage and the transfer ofthat right should be relaxed restrictions. Lastly, to implement the licensing and registrationlegal system of the land contractual management rights, what need to be done includesimproving the legislation of the licensing and registration legal system, unifying the licensingand registration organs, making clear the legal effect of the license and registration, perfectingthe procedure of licensing and the registration, complementing the legal system of registrationof alternation as well.Chapter5is the perfection of the legal system of the rural unified management systemwhich made response to the existing problems of this system as indicated above also from theperspective of specific legal system. The construction of the economic organization system,occupying the basic position in the construction of fundamental management system in ruralareas, acts as an essential organic carrier and system guarantee of the operation of otherfundamental management system. For this reason, the proceeding chapters chose from theangle of the construction of the economic organization system, like the rural collectiveeconomic organization, the farmers′cooperative economic organization and the leadingenterprises in the industrialization of agriculture, to sort out some present legal problems ofrural unified management, of course, with a combination with the new direction of the ruralunified management. Responding to these problems, this chapter offered some suggestionsbelow. Firstly, the legislation of the rural collective economic organization and related legalsystem should be perfected, in particular, enacting the basic and specific statutes concerningthe rural collective economic organization timely, reconsidering and clearing the function ofthe rural collective economic organization, and defining the legal status (the legal person) of itas soon as possible. Secondly, the legislation of the farmers′cooperative economicorganization and related legal system should be perfected. To be specific, on one hand, newstatutes which delimits the form of the farmers′cooperative economic organization should beenacted, the focus of which lying in defining the legal form of the rural special techniqueassociation and rural cooperation financial organization represented by the mutual aidassociation of rural fund and based on that improving related legal mechanisms. On the otherhand, the legislation of the farmers’ specialized cooperative and related legal system should be improved, such as making additional provisions with regard to the federation of farmers’specialized cooperatives, completing the operating mechanism of the farmers’ specializedcooperative to protect the interest of their members and relative trading parties, and perfectingthe implementation mechanism of supporting policy. Lastly, the legal system regarding toparticipation of the leading enterprise in the agricultural industrialization in farming should beperfected, the key to which lying in proper guide and regulation of the form and scope of theparticipation through perfecting legislation, establishing and improving the law–governedimplementation mechanism of supporting policy concerning the leading enterprise as well.