Research On The Nature Of Land Contractual Management Right

Land contractual management right is a right with Chinese characteristic. Thereare a lot of different views about its nature even to its concept in theory and practice.It's very unfavorable for protection of peasants'rights and interests in land anddevelopment of rural economy in this condition. For this reason, this text defines theconcept of land contractual management right mainly in theory and analyzes thereason that dispute produced of its nature, attempting to find the method of solvingthe problem of the dispute through combing and analyzing;and step forward to definethe nature of the land contractual management right and its positon in our country'spresent civil rights system through investigation of history and theoretical research ofsystem.Seeing that the problem that this text studies has attributes of theory and practice,I have adopted the method of new analytical jurisprudence, historical method, methodof comparison, the research method of real example analysis combining with socialreal example analysis, etc. Considering that our country is basically in ContinentalLaw Legal Family, I analyze the nature of land contractual management right underthe visual field of the concept system of Continental Law Legal Family. Meanwhile,this text has carried on certain real example analysis of land contractual managementright, considering that land contractual management right is a kind of right withcharacteristic of China. So, this text takes the research approach of the new analyticaljurisprudence as the core, concurrently with the research approach of the real exampleanalysis. When probing into formulation and development of land contractualmanagement right, this text mainly uses methods of minimum form of right and rightbunch of analytic approaches of new analytical jurisprudence and historical method.When probing into the land contractual management right's position in our country'scivil rights system, this text has mainly adopted method of comparison and method ofthe real example analysis.This text has carried on analysis and discussions about the nature of landcontractual management right in the mode of dialectical analysis of what it really isand should be, and under a new analytical frame. Through studying and testifying,this text thinks : In fact, land contractual management right is a result of China'sspecial historical environment, it is a kind of proprietary with transitionalcharacteristic. Before really defining its legal nature and what it belongs to in law, itsproperty is not distinct, and it can't be classified as right in rem or creditor's rightbriefly. In the meaning of what it should be, we should remove non-real rightcomposition of contractual management right and provide it in the usufruct in theview of Continental Law Legal Family. Legally to strengthen the protection of landcontractual management right, with the exclusiveness and dominance of real right, itis more helpful to protect peasants who have contractual management right of land, somost scholars have proposed the real right thinking, proposing to provide landcontractual management right as a kind of usufruct in the real right. This is the goalmode of land utilizing system which is to be improved in rural areas of our country,too. But to be right in rem isn't the very medicine to solve all problems, and real rightthinking has some suspective points. So when defining the nature of land contractualmanagement right as usufruct and enriching its contents, we should pay attention tothe completion of relevant systems such as rural social security system, landrequisition and so on.