The Subject Of The Right To Contractual Management Of Land

The land systems are the most basic core economic system and a microcosm of the three-agricultural-problems. Since the household contract responsibility system was established in 1982 and replaced the people's commune system, the state has kept adjusting and improving them: The land contract term lasted three-year to fifteen-year to thirty-year and finally remained a long-term; the land adjustment policies is from the"overall stabilization and little adjustment"to the"do not increase the amount of land for the population growth and do not minimize for depopulation"to the"inhibit the little adjustment and keep the 30-year contract period stable"; the right of rural land contractual management included the right to possess, to use, to benefit and eventually extent to the right to disposed in some degree. That is to say the land contract systems are gradually improved and matured.In the urbanization and industrialization process, the peasants flowed into the city for a job is a common phenomenon, and that caused the geographic mobility enhanced. As a result, the rural land trends market-oriented, large-scale and industrialized operation, and there is a huge space of land value-added, as well as the rights for collective member and the status for individual is more and more emphasized. As the reform of household registration system is deepening, the social security system is continuously improving and the urban-rural integration is gradually advancing, the peasants'identification chains have been broke. Subsequently, the identity property of rural land is fading and it is need to rebuild the land right structure. However, the legislative branch responded sluggishly to the new changes in the rural society. The law defined the peasant household as the subject of the right to land contractual management, but lacked in providing the elements of the law, the operating mechanisms and the inner division of rights and obligations, etc. The law couldn't figure out the conflict of interests on the collective to the peasant household and the peasant household to peasant. It is difficult to construct the access-exit mechanisms of the land contract management, so that it is little help for the identity transformation between the peasants and the citizens. All of those caused the author's consideration on the thesis. As the old saying goes, practice guides theory. Only clarify fundamentally the relationship between the peasants and define the real subject of the right to land contractual management, it can protect the peasants'rights caused by the urbanization.This thesis is divided into three parts and contains more than 40,000 words. The first part summarizes the subject of the right to the household-basis contractual management of land. It consists of the following three parts: (a) the origin of the right to contractual management of land; (b) the summary of the right to the household-basis contractual management of land and the concept of the subject; (c) for the legal loopholes of the peasant household's definition, on the basis of the academic viewpoints, probe into the household definition, nature, character and significance, and define the household as an organized body which based on the blood or marital relationship and lived on the income in agriculture, with characterized by the family key members living in rural areas and the original birthplace being there.The second part discusses the legal problems of defining the subject of the right to contractual management of land as the peasant-household. First of all, on the basis of sorting out the legislation, it gets into the consideration that defining the subject of the right to contractual management of land as the household makes great progress. Secondly, points out the problems of the peasant-household being the subject: (a) in the acquisition mechanism, the land is divided by the number of peasants rather than the number of households, and the land contract bases on the contract rights rather than the contractual rights; (b) in the exit mechanism t, the time of the peasants leave the rural doesn't match with the time of the peasants return the land. There is lacking of the incentive for peasants or households returning the land, oppositely, the women substantively lose the right to contractual management of land by leave the rural for marriage; (c) in the protection mechanism, more and more peasants lose their land and their land right is difficult to protect which cause serious conflicts between the landless peasants and land farmers. Finally, it forms the conclusion that defining the subject of the right to contractual management of land as the household is more harm than good and it is not conducive to stabilize the rural society.The third part is about the improvement of the subject systems of the right to contractual management of land. This part is the core of this thesis. Firstly, for the legal problems of defining the subject of the right to contractual management of land as the household, combining the new situation in rural areas, on the principles of partnership and the theory of co-ownership, it is divided into two kinds of households by the different stages, and it sets up the system constructions in terms of the acquisition mechanism, the protection mechanism and the exit mechanism. The thesis points out that the household should be the organization body of managing the contract land, but the peasant should be the subject of the right to contractual management of land. Secondly, it defines the right of the members as quasi-co-ownership which can be divided when the family was separating and it calls for the adjustment mechanism to protect the landless peasants. Finally, it improves the exit mechanism and indicates that the peasant's land should be recovered and be redistributed once he was dead and the land should be returned once the peasant reached the mandatory retirement age. It should implement the old age pension in agriculture, retain the contract for the peasants settling in small towns or working in cities and adjust the land according to the principle of land homeostasis for the migratory peasants because of marriage.Guided by the basic principles of Civil Law and combined with the social reality, the author formed his own opinion on the subject of the right to contractual management of land and put forward the innovative comments on establishing the entry, exit and protection mechanism, by exploring the relationships between the peasants and the households and using the social empirical analysis methods and the comparative analysis methods, to achieve the equitable benefits distribution on the premise of the consolidate the right to contractual management of land.