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China's Rural Land Contracting Right Theory

Posted on:2008-07-18Degree:MasterType:Thesis
Country:ChinaCandidate:J Y ChenFull Text:PDF
GTID:2206360215472809Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
"Village,Agriculture and Farmer" issues are an formidable task forquite a few scholars with high social responsibility to take on. Indeed, thesustainable development of the agriculture ,the stability of countrysidesocity and the increase in production yield and in farmers' income areessential for the long and peaceful reign of our country as well as thesustainable development of our national economy.It is recognized in theacademic circle that land is still what farmers are living on nowadays inour country.Therefore, through either theoretical derivation or empiricalstudy, we can not deny such a truth, namely the rational design and soundimplementation of the land system is fundemental to solve the"Village,Agriculture and Farmer" issues. Undoubtly, some scholarasserts, the innovation of land system plays a key role insolving"village,agriculture and farmer"problems.The whole article is divided into four chapters,the first one is theoutline of the countryside land contract management right, the second onefocus on the theoretical principle and influencing factors for thecountryside land contract management right, the third one focus on thestudy of transfer manners of countryside land contract management right,the fourth part is probing into the special issues occuring in the proess ofthe tranfer of countryside land contract management rightIn the first chapter, maily expatiateing such several issues as follow:State in brief the nature of countryside land contract managementright.The Countryside Land contract mangement right taking effect andthe acquisition of it.Main viewpoint: it is generally accepted in theagreement academic circles that countryside land contract managementright is the property right of gaining profit by using,and make an anaylsisof the charater of the specific property right.Disapproving the transferpattern system of the contract management right defined by our current national legislation. On the basis of the property right transfer patterns ofthe countryside land contract management right, the different patternshould be adopted in diffemet situation,and then to improve the system ofour countryside Land contract management right transfer takingeffect.Moreover, it is stipulated in the second clause of Article 31 andArticle 50 of the Countryside Land Contract Law that inheriting theproperty right transfer manner of this nonlegal act. At the same time ,wecan not ignore the property right changing the force of law directly causedby levying for public use,forcible execution and court decision.Underthese four conditions, the registration is neither the essential element fortaking effect,nor the essential element for being against.As long as theabove-mentioned specific matter of law exists, the transfer consequence ofthe contract management right shall be produced.The history of thecountryside land contract management right transfer.Review in brief thelegislation course of our countryside land contract management righttransfer.Chapter 2 is focusing on the analysis of theoretical principle andinfluencing factors for the countryside land contact management righttransfer.With regard to theoretical principle, a systematical statement hasbeen made from the view of economic explanation, legal basis andsociety basis.With regard to influencing factors, it will be expatiated indetails from seven aspects such as the social security of the most vilages,the finely broken land,the unstable factors of land contract managementright, the absence of easy-acquired information source and mediumorganization, force imposed on by the administrative means in some areas,and the nonstandard transfer procedure.The chapter 3 is the key part of the whole article, the autherexpatiates at length all kinds of transfer means, and offer the perfectproposal to every transfer mean, and think that the and leaseback are notthe transfer mean of the contract management right and should be deniedby legislation. Context: The author makes an exposition of all kinds oftransfer means from a great many of aspects such as the connotation analysis of the transfer means, the review of the transfer legal relationship,the analysis of the specific manner of transfer, the analysis of requirementsfor the transfer taking effect and the analysis of transfer consequences soon.The ones to be emphasized: 1, The essential element for the contractmanagement right transfer taking effect, a selective analysis of whether ornot the transfer should be subject to the consent of the party issuingcontract.2, The relationship between the leasa of the contract managementright and the subcontract of it,the legal status of the subcontract.3,Whether or not the contract management right can be inherited.4, Theinvestment manner of the contract management right.5,identifying themortagage system of the land contract management right.Chapter 4 expatiates the special issues occuring in the process of theland contract management right transfer, including the priority of it,thecommon problems arising in the process of transfer and the methods tosovle them.The exsiting problems are considered as: the most are thetransfer without compensation, the objects of transfer are a few due to toomuch limitation,the transfer manners are nonstandard. The actions: bystandardizing the defination of the qualification of the party receivingtransfer, standardize the transfer procedure. Law should clearly stipulatedthat the transfer can not change the agriculture use of land takingadvantage of the market mechanism to achieve the transfer of the landcontract management right.Author also thinks,in order to improve the system of the landcontract management right transfer, we must establish a fair and stableenvironment,speed up the tax reform, establish a perfect village socialsecuriety system, safeguard the farmers to fully enjoy their own rights, soas to better achieve the transfer of land contract management right.
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