Circulation Of Collective Land Usufructuary Right In China

Collective land usufructuary right in China mainly includes three forms: rural land contractual managerial right, collective construction land use right and homestead land use right. This paper researches into the circulation of collective land usufructuary right in China, introduces the development history of this system, reviews the legislation and practice of rural land right circulation in related countries, analyses the circulations of three collective land usufructuary rights and current system designs, gives some legislation advice combining current laws with real right law draft and specially focuses on publication system of collective land usufructuary right circulation in order to further complement related laws. The paper is divided into six parts except guide and conclusion parts.First part reviews the development history of rural land right circulation system and briefly analyses this system in the angle of law and economics. The system experiences a process from forbidden to restricted circulation. The choice between forbidden and free circulation substantially reflects the concern of equality and efficiency in system design. According to the theory of law and economics, circulation system design of collective land usufructuary right in China should insist on the value orientation of "Give Priority to the Efficiency, Give Consideration to the Equality".Second part compares the legislation and practice of four countries' rural land right circulation, including USA, Japan, Russia and Vietnam. Three important conclusions could be drawn from the analysis: 1 the system of future Chinese rural land right circulation should be designed in the base of land usufructuary right circulation, not land ownership circulation; 2 both natural and social properties of rural land should be taken into consideration; 3 rural land right circulation system should keep pace with the reform of rural land.Third part investigates laws and regulations of rural land contractual managerial right circulation. With consent of the party awarding the attornment means with the consent of two thirds of villager congress members or villager representatives. Laws should not limit the transferor, and transfereer should not only be restricted to be collective economic organization members, but also the people whoever work on agricultural production. Rural land contractual managerial right should be allowed for exchange amony contractors from different collective economic organizations. After leasing the right, contractors will get the real-rightize right. In the long term, mortgage of this right should be open, but there are specialities and flexibilities of operating method. Inheritance system design should take in consideration of the fact of our country and keep corresponding to related laws. Share of this right has more positive aspects, so the restrictions in law should be gradually open.Fourth part examines laws and regulations of collective construction land use right circulation. There should not be many restrictions in law on collective construction land use right. Lease of this right should obey related regulations about the time limit of lease contract in contract law, and should not limit the contractors range. Separate mortgage should not be allowed for collective construction land, which should mortgage with the building on it and be recorded to the land ownership. Share, as a method for establishment and circulation, is not the same as cooperation and joint-ownership of collective contruction land use right.Fifth part researches into laws and regulations of homestead land use right circulation. Transfer is allowed under certain conditions and ranges. For non collective economic organization member, assignment must be restricted even though it is necessary. Villager is allowed to sell the house built on homestead land. Lease is allowed under overall land use planning. Mortgage is allowed both for homestead land and house, which could be mortgaged together or separately. Homestead land use right has the same property as membership right, which means that inheritance is not allowed. But if there is a house on homestead land, the house is allowed to be inherited.Sixth part discusses publication system of collective land usufructary right circulation. Complete registration system must be established in the long term, but at present the application of traditional rural publication methods should still be considered. Due to diverse legal effects, the alteration modes will be different as well for three types of collective land usufructary right, but whose overall designs should keep in accordance with regulations.