Agricultural Land Use Right Transfer The Legal System

Through the comparative study in the process modernization ofinternational farm land systems, we can get the conclusion that all themodern farm land systems have undergone the change from the system ofindividual farm land management to the system of management of properscale. Thirty years has passed since our country adopted householdcontractual land management. In light that this kind of farm landmanagement reform system has lost its incentive function, our governmenthas impliedly accepted the farmland management right circulation systemin its farmland policy and legislation, though little progress has been made.This paper tries to explore the construction of relevant practical legalsystem with the value orientation of farmland management rightcirculation. It is composed of five parts.The introduction part focuses on the definition of relevant termsconcerning farmland management right circulation. Circulation, as ageneral concept, refers to a bunch of legal activities. It is employed in thispaper referring to permanent or temporary transfer of right to farmland usefrom one civil subject to another. Right to farmland use refers to suchrights to farmland contractual management as rights to ownership, use,interests and transfer.The first part analyzes the evolution and current state of farmlandmanagement right circulation. This system has undergone a"forbid—restrict—gradually open" procedure. Though the currentmechanism of farmland management right is workable, it is not perfect.Many loopholes still exist. Imperfect mechanism ultimately results in lowefficiency.The second part explores the relationships between some key issuesand their value-orientation as well, from the perspectives of jurisprudenceand economics in the circulation of right to farmland management.1. The relationship between management of scale and householdmanagement. Farmland management of scale can improve and develop, instead of conflicting with, household contractual management.2. The relationship between inductive circulation and obligatorycirculation. The former should prevail over the latter. That is to inducefarmers to enjoy the fruit of proper farmland centralization throughcirculation of right to farmland management in accordance with the parties'own will by initiating proper mechanism and making the subsequentbenefit obvious.3. Fairness and efficiency. The author advocates that efficiencyprevails over fairness in circulation of right to farmland management. Thereason is that fairness has been balanced in distribution of farmland whichitself is kind of even distribution of social welfare. On this base of fairness,the owner of right to farmland management may circulate the right tofarmland use voluntarily.4. The imperfectness of circulation market of right to farmlandmanagement. To make up the defect of market mechanism in readjustingcirculation of right to farmland management and to create a friendlyenvironment for the micro-distribution of farmland to farmer household,the local government should conduct macro organization, monitoring andcoordination by different means.5. Farmland readjustment and circulation. Farmland readjustment andcirculation are two parallel mechanisms existing in China's farmland usesystem. They are two obviously different means in farmland resourcedistribution. Therefore, in the specific mechanism of circulation of right tofarmland management, the value orientation of promotion andadministration should be upheld. The owner of right to farmland useshould be entitled to the circulation right to promote the circulation of rightto farmland use efficiently and effectively.The third part concerns reflection on the mechanism employed topromote circulation of right to farmland. The interior mechanism ofcirculation of fight to farmland means the mechanism itself. In respect ofthe subject of circulation, the corporation system of agricultural productionshould be adopted and perfected gradually. In respect of means of circulation, reconstruction is necessary, including transfer, mortgage,inheritance, subcontracting (releasing), entrust and incorporate. In respectof mechanism of circulation, the right of participation, the right to learn thetruth and right to make decision of the household should be guaranteed.The optimization of outer environment means that the government shoulduphold the value-orientation of circulation and, with some measures ofpolicy, create an ideal outer environment for circulation of right tofarmland to induce and promote the efficient circulation. It includes policyof agriculture insurance, establishment of farmland circulation servicecenter and perfection of rural social security system.The fourth part concerns legal reflection on control of circulation ofright to farmland. The control on its usage should adhere to the principle ofagricultural use only. The registration administration shall be in favor of theregularization of farmland circulation. The control of circulating farmlandarea shall fulfill the value-orientation of farmland circulation—improvingfarmland efficiency. And also, to avoid speculation, the acquirer of fight tofarmland use shall not transfer the fight to farmland use of the very landwithout permission and shall use the very land as means of agriculturalproduction in a certain period of time, generally in a period of 5 years.