Study On Legal System Of The Transfer Of The Rural Land Contract And Management Right Of China

The transfer of the land contract and management right is to rearrange the peasants'contracted land by the way of right transfer, Its purpose is to raise the land utilization rate and to promote the land scale operation, and so as to promote the development of rural productivity as well as accelerating the process of integration of urban and rural areas. The transfer of the land contract and management right of China has been practiced for over thirty years, have been achieved some good results whether on theory and legal system or practice,and have promoted the development of rural economy.But some vexed question still exist, and they are very difficult to be broken through on theory and practice. For example, the question of legal attribute of the transfer of the land contract and management right,although this question has been determinated in law,the argument on theory has been continuing. For example, the question of free transferability,and mortgage or not of the transfer of the land contract and management right, the argument theory is growing vigorously and everyone has his own point of view, the legal statement remains quiet and prevents from saying yes or no, the exploration of practice is implicit. This paper starts from the common question of the transfer of the land contract and management right, on the basis of the survey of legal attribute of rural contract land management, concluding the viewpoint that is the duality of the rural contract land, which can be divided into the rural contract land management which has the quality of ownership of property and creditor's rights. Then this paper analyses the theoretical foundation of the transfer of the contractual right of rural land, and demonstrates its necessity and feasibility from the meaning of law and economics, and elaborates the connotation and feature of the transfer of the land contract and management right.In fact, whether the emphyteusis of the Chinese history, or estate, lease in perpetuity, usufruct and so on which are the.different styles of developed countries, the transfer which is similar to the rural land right is very active, and as a kind of mature experience, it is necessary for the transfer of the contractual right of rural land of China to assimilate. At present, the transfer of the contractual right of rural land of China is whether in the way of transfer, procedure, normalization, or in the cultivation of the market for transferring, reform measures concerning transfer feasibility, which exist many different problems. Aiming at these problems, on the basis of drawing on the experiences of Chinese history and developed countries, this paper offers the standpoint that is a new tenancy of in perpetuity of the transfer of the contractual right of rural land with Chinese characteristics, and on this basis, examining some different controversial ways of transfer seriously, considering that the transfer of the land contract and management right should be allowed transferred freely and mortgaged, and elaborating the concept of becoming a shareholder and lease thoroughly. At the same time, this paper also brings up that implementing rural land trust system according with the rural land feature, should be acted as a fundamental model of carrying out the transfer of the land contract and management right (not as a way of transfer), exerting the function of platform and medium of the rural land trust service organization, so as to guarantee the efficiency and quality of the the transfer of the land contract and management right better.