Study On Transference System Of Forest Rights In China

At present, our society is at a turning point. Meanwhile, the forestry of our country is in an important transition period of giving first place from wood production to ecological construction. It is an indispensable and important link of sustainable development of forestry to construct perfect transfer system of forest rights.Current legislation has defined forest rights and regulated its transfer in principle; however, the relevant legislations are lagging. In 1998, article 15 of the revised Forest Law authorized the State Council to formulate concrete measures on the transfer of forest rights. Decision of the Central Committee of the Communist Party of China and the State Council on promoting the forestry development which was released in June 25, 2003 clearly reclaimed again in article 14 that: "the competent department of forestry of the State Council should cooperate with relevant departments immediately formulating concrete measures on transfer of rights to the use of forest, woods and woodland, which shall be put into effect after being submitted to and approved by the State Council." However, this nationwide legislation fails to issue till now. Therefore special study on the system of the transfer of forest rights is not only the need of implementing scientific development view, promoting sustainable development and realizing the harmony between human and nature, but also the need of advancing the reform of forestry's economic system, perfecting the legal system of real right, formulating concrete measures on the transfer of forest rights. It makes important theoretical and realistic sense.Besides preface and conclusion, this paper is about 45,000 words, and divided into 3 parts:Analyzing the definition of forest rights in legislation and jurisprudence, defining such basic conception as forest resources, forest, woods and woodland, etc. Through investigation from the angles of botany , ecology, etc, and referring to other countries and regions relevant legislations , the first part of this paper draws the view: forest right is the right of possession, use, profit and disposition of the country, collective, natural person, legal person and other organizations to forest, woods and woodland in accordance with the law. Transfer of forest rights refer to its transfer among different legal subjects caused by various kinds of reasons in general. The author believes that,though there lacks concrete, practicable regulation in current legislations, transfer of forest rights is necessary and feasible. The content of transfer of forest rights mainly include transfer of the right to use and the contractual management right of woodland, transfer of the ownership and the right to use of woods and transfer of the right to exploit the forest landscape.The second part analyzes the current transfer system of forest rights in our country. Based on the revises and comments on current transfer system of forest rights in our country, the author deeply analyzes its defects and harm. "The case of forest destruct by JinGuang Group in Yunnan" offers a lifelike sample for our analysis, it reflects that the construction of transfer system of forest rights on one side should has itself in mind, and on the other side can't ignore the influence by deep factors such as relationship between central authority and locality, government and market, economic development and environmental protection, etc. The causes of the defects of current transfer system of forestry rights are various, including: ruling the country by law is still at starting stage; reasonable disposed power system under the frame of constitutionalism isn't set up yet; forestry legislation is back forward; Forest Law has many defects; legislation of transfer of forest rights is lag; nationwide legislation isn't issue yet.The third part analyzes basic thinking of perfecting the transfer system of forest rights from macroscopic, midst view and microcosmic aspect: rule the country by law and set up reasonable disposed power system under the frame of constitutionalism; refer to successful experience of other countries and regions, revise and perfect Forest Law and relevant legislations, give full play to the role of market; draw the experiences and lessons from practice and construct scientific transfer system of forest rights. That is to say, on the macroscopic, the relationship between central authority and locality should be legalized, the government should change its function, administer the state by law and should control the undesirable inflation of administrative power through expanding the judicial examining right of the judicial organ while strengthening administrative law enforcement. On the midst view aspect, we should upgrade the legislative aim of Forest Law, realizes the transition of standard from resource economic to ecology sustain , reconstruct forest legal system of relevant right, define basic conceptions such as forest rights, clarify and increase the feasibility of the transfer of rights, implement forestry's categorized management and administration, reform and perfect the system of quotas fell, adopt different management methods to the public welfare forest and goods forest; On the microcosmic, transfer of forest rights should regard certificate of forest rights asevidences, follow the announcement principle and principle of trustworthiness. While intervenes economy in accordance with law, the government should take such many ways as conveying, leasing, mortgaging, auctioning, calling for bid, agreement, etc. To carry on transfer of forest rights, perfect the procedure progressively, strengthen the supervision and management to transfer of forest rights according to law. The above-mentioned three aspect efforts should form join force to promote transfer of forest rights and management of forestry, meet with the economic, cultural and spiritual demand of contemporary and descendant society.