Restructuring Land Leaseholding Right System

China is a big country of agriculture, but has huge population with relative littleland, and with the low productive force of the rural area, the differentiation of theurban and rural areas and the like, which seriously impact the process of themodernization, and the peasant problem has become a social problem whichextremely needs our country to settle. "Land is the mother of the wealth", the basis ofthe peasant problem is the problem of land, and the quality of the allocation of theland title will heavenly influence the rural economy. A good system can promote thedevelopment of the economy and do benefit to solve the social dispute, and eventuallyto realize the impartial social order; in contrast, a bad system can impede thedevelopment of the economy, and can do nothing when faced the dispute, thereforethe jurist has an unshirkable duty to settle the peasant problem. Many jurists havegiven advices of constructing legal system intending to find the approach for settlingthe peasant problem. Today, our country is striving for enacting property law and civilcode, therefore how to regulate the rural land system and adjust the relationship ofland ownership and land use have become the urgent task to which the jurists have toface. Based on this background, the author rethinks the rural land leaseholding systemattempting to find out one approach to settle these problems in terms of the systemstructuring .This treatise includes the preface, the main text, and the conclusion. The maintext divides into four chapters. The first chapter is to describe the status of ourcountry's current system. In order to settle the rural area problem in terms of legalsystem, we should first know the current system status of our country, and reviewingthe rural land leaseholding right system status of our country is also the basis toanalyse the quality of the system. The second chapter is mainly to analyse theshortcomings of the current land leaseholding right system. The current ownership ofour country's rural land is collective ownership which has many contradictions.First ,the borderline between the collective ownership and state ownership is vague;second, the titlehood of the collective ownership is unclear; third, the position of thesubject of the collective ownership is nominal; finally, the movement of the collectivemember and periodically or irregularly adjustment of the land use make the landleaseholding right unstable, which is detrimental to develop the efficiency of the landuse. The rural land leaseholding right has not the character of right in rem, and it isnothing but a contract of rural area leaseholding according to which the rights andduties of the parties is regulated, which is obvious a creditor's right, and in fact theinterests of the peasants can't be secured, and the interests of the peasants arefrequently infringed by the collective group, which must be changed. The rural areaprevailing land leaseholding right can't be transferred freely, which make the peasantto be born in peasant, so this has the character of paternity, and the personal freedomof the peasants isn't detachable to the land, and just for this reason there developedthe concept of "peasant-worker"as well as the phenomenon of "land leftuncultivated", and in fact there formed the dichotomy social structure of urban andrural area, which runs counter to the basic principles of the market economy and doesharm to the development of rural economy and the harmony of society. The currentland leaseholding right has so many shortcomings that it must be changed andrestructure the system. The second mainly gives the jurisprudential basis for restructuring the rural landleaseholding right.Equality is a basic human right following with the born of a man,which is also the basis for the modern society to create system. Civil law is the basiclaw of the market economy, adjusting property relationships and personalrelationships between civil subjects with equal status, therefore the principle ofequality is also one of the basic principles of civil law, and restructuring the landleaseholding right should also subject to this principle. The human being has also longbeen seeking the value of freedom, and protecting the freedom of the human being isalso the eventual object of the law. The core value of the civil law is the autonomy ofthe will, and structuring the land leaseholding should compile with the value offreedom as well as the value of efficiency. The economic analysis of law is to analyzethe legal system in terms of the cost and benefit. To advance the agricultureproductive level is to advance the efficiency of the rural productive, and a goodsystem does benefit to realize the efficiency, therefore structuring the landleaseholding right should also compile with the principle of efficiency. At present, tostructure the "harmonious society"is an important task of our Party and our country,and the "harmonious society"is also the standard value for structuring the legalsystem. Yet the current rural land leaseholding right increasingly worsen thedifferentiation of the urban and rural areas, forming the contradictory dichotomy ofthe social structure, which will do harm to structure the "harmonious society". So weshould consider whether the implement efficiency of the land leaseholding rightstructure does benefit to structure the "harmonious society", and the system itselfshould compile with the principle of harmony and harmonize the different systems toeliminate the conflict. The third chapter advances the approach of restructuring the rural landleaseholding right. The author advances the approach of the restructuring the systemrightly based both on the analysis of the shortcomings of current land leaseholdingright and the jurisprudential basis of structuring the system. First, this treatise put...