Study On The Legal Structure Of Land Management Right Under The "Separating Rural Land Ownership From Contracted Management Right"

For Chinese peasantry,it is a long-standing desire to obtain rural land rights with a true “property attribute”.The voice of the private sector for opening up the agricultural land market is growing,and these are reflected in the central legislation and related policies reflect in time.But in the contrast,the legal experts to study rural land management rights is slightly weak.Especially for the elements of land management rights,the establishment and change rules,etc.,are rarely involved.The land management right under the “separating rural land ownership from contracted management right” is the core of the reform of rural land system.Based on China's basic national conditions,in accordance with established legal norms and current legislation policy,study the legal structure of land management right,the practical implementation of rural land,the “separation of three rights” reform,theory real rights law to promote,with outstanding practical value and theoretical significance.The full thesis is based on the legal construction of land management right under the “separation of three rights” of rural land,which consists of seven chapters.The first part is the definition of land management rights.The content includes the definition of the concept of land management rights,the definition of the legal attributes of land management rights,and the definition of the relationship between land management rights and existing rural land rights.Decomposing the meaning of the concept of land management right at the legal level through the principles,objects,key and core defined in the concept of land management rights.Land management rights means civil subject obtained on rural land to agricultural production for the purpose of usufructuary right.The legal attributes of land management rights can be analyzed separately from the nature of private rights and the nature of real rights.In terms of the nature of private rights,private rights nature of the construction land management rights,is the most important initiative to establish commodity economy in the field of collective land,in order to solve the low offer of Rural Land Utilization Efficiency Program,for the clarity of the state and collective organization,provide a basis for land relations between farmers;As far as the nature of real rights is concerned,land management rights are directly dominant and subject to the absolute and complete protection of real rights.Setting the land management right as a new type of real estate usufructuary right can give play to the use value of collective land,cope with the dilemma of abandoning farmland and abandoning agricultural production,and help to exert the functions of existing land contractual management rights.The relationship between land management rights and existing farmland rights,it includes the relationship between land management rights and land contractual management rights,and the relationship between land management rights and collective land ownership.As far as the relationship between land management rights and land contractual management rights is concerned,the former and subsequent nodes of the real rights law are officially implemented as the boundary,the legal attribute of the land contractual management right in the current law is the usufructuary right,which can be integrated with the land management right under the “separation of three rights”;In terms of the relationship between land use rights and collective land ownership for the usufruct right and ownership relations.The second part is the subject of land management right.From the perspective of legal concept,the perspective of civil subject,and the subject of real rights,the basics of land management rights are discussed hierarchically.The main value objective and function orientation of land management rights are discussed,and the constitutional qualifications and land management rights of land management rights are discussed.The scope of the subject,the main attribute of the land management right,and the registration rules of the legal entity,etc.,it is considered that all civil entities including contracted farmers for the purpose of agricultural production may be the subject of the land management right.The third part is the object of land management right.As a new type of real estate usufructuary right,land management right does not violate the principle of “one property one right”,and it is reasonable to define the object of land management right by the theory of “rights exercising”.General Requirements Law structure and agricultural land usufructuary object composed at the same time,combined with China's rural land rights division,our agricultural land system Implications for land management rights object defined,both from a quantitative and qualitative and object object,proposed and demonstrated the object of land management rights legislation ought to choose,that is,collectively owned rural land can be used for agricultural production and management.The fourth part is the content of land management rights.In terms of the assignment-type land management right,the basic rights include possession(directly occupying rural land),use(operating autonomy,use restriction),income(natural fruits,fructus civiles)and disciplinary action(right of disposition).The rights the assignment-type land management right holders mainly include the ownership of the aboveground,the right to use the land in accordance with the contract,the right to transfer the land-operated land,the right to claim and the right to renew.The obligations of the assignment-type land management right holders are to pay land use fees,to arbitrarily change the land use and to maintain/optimize the land.At the theoretical real rights law,civil law and the legal equality of fair value concept to start,it is only necessary to adopt the “contracted(written)consent” of the contractor when its proposed to set a burden of rights on the land management right and the burden may detract from the existing rights of the contracted farmer.As far as contractual land management right are concerned,the basic rights are generally consistent with the assignment-type land management rights.The difference is the contract-type land management right to operate can have a disposition,on the principal otherwise agreed in the contract should respect their agreement,may be turned into a land operation rights assignment-type condition is met.The rights of contracted land management rights holders mainly include priority contracting rights,transfer rights,equity rights,and compensation claims under the same conditions.The the contract-type land management right holders mainly include priority contracting rights,interchange rights,capital investment rights,and compensation claims under the same conditions.The fifth part is the establishment of land management rights.According to the theory of real rights law,starting from the general concept and characteristics of the establishment of land management rights as the usufructuary right,and different ways of establishing rights,the two types of “the assignment-type land management right” and “the contract-type land management right” are distinguished.This has a core meaning for the design of the land management right law structure,which can enable the land management right system to truly carry the goal of “a major institutional innovation in rural reform after the household contract responsibility system”.The two types of land management rights have different rules for the establishment of real rights: the assignment-type land management right shall be registered,and the assignment contract is real rights contract.For the right holder of the contract-type land management right,it is not necessary to register when in the contract clearly that rights will not be transferred—— the contract-type land management right's contract was established,the right was established.The sixth part is the the transfer of land management right.The transfer of land management right is the foothold of the reform of China's rural land system which means the effective allocation of land resources through market mechanisms.The main forms include: transfer,mortgage,capital investment,leasing,gifting and inheritance.Among them,The transfer rights belongs to the change of property rights,that the effective conditions include both the main elements and the essential elements.The right to operate mortgage land without legal impediments.Which can through mortgage land use rights,would effectively alleviate the plight of the capital level of financing difficulties and other human rights,and land contract warrants for the establishment of the right is necessity;capital investment rights is the most important mode of capitalization of land management rights.So the specific design of the system need to be considered the form of capital investment,mechanism of the organization,investment risk prevention measures.Lease land rights should be completed from five meanings.The future legislation can adopt the internationally accepted notarization method.The right to inherit land management rights as a necessary requirement for a pure property rights,inheritance rights have become the object of legitimate basis.The seventh part is the change and termination of land management right.Change of land management right include changing content and object changes.Land management right to change the content should strictly follow the Numerus,be changed within the range of typical content provided by law;The change of the land management right object includes two cases: “increase of the object” and “reduction of the object”.The former refers to “the increase of the object within the original land area”,the latter includes “partial loss of rural land” and “division of rural land” two types of situations.The conditions for the change of land management rights are for registration and apply to the collective organization for filing procedures.The reasons for the termination of the land management right are: the expiration of the term of the rights,the violation of the statutory obligations,the agreement of the parties to the contract,the expropriation of the land,the infringement of the right holder and the loss of the land.The legal effect of the termination: original claim for return,cancellation of registration,the ground object retrieves the claim,compensation claim.