A Study On The New Types Of Case In Rural Land Contracting Operating Right

With promulgation and implementation of the Property Law officially, itsymbolizes the establishment of our system of the land contracting operating right.As the usufructuary right, the rural land contracting right refers to the rights ofpossession, use, income and action enjoyed by the holder of the land contractingoperating right who wants to engage in farming, forestry and animal husbandry forthe contracting land which is the collective or state owned land and used by peasants.From the perspective of the history of right, the rural land contracting operating rightstems from the contract of the rural land contracting. The rural land contractingoperating right implements the system of registration and certification, and adoptsthe registration confirmation doctrine rather than the registration validity doctrine,that means the rural land contracting operating right is established when the contractof contracting is established and takes effect, and not established at the time ofregistration. The disciplinary action of the rural land contracting operating rightmainly refers to the circulation of the rural land contracting operating right.According to the relevant provisions of the law such as Rural Land Contracting Lawetc., the rural land contracting operating right can carry out the circulation bymethods of subcontract, lease, exchange, transferring，investment by means of shareor other means according to law. If the rural land contracting operating right isinfringed, it can be remedied in four ways such as conciliation, mediation, arbitrationand lawsuit, the right holder can exercise the right of the real claim. In addition tothe obvious property right attribute, and land is the most basic resource for ruralproduction and life, the rural land contracting operating right also has a special rolein rural social security in present rural areas, because it has not yet established socialinsurance system which is similar to that of urban residents in rural areas, farmer lostterritory may lead to serious social problems, in order to ensure that the basic systemof rural is relatively stable, the current laws and regulations are made more stringentinstitutional arrangements on the acts of the rural land contracting operating right, such as adjustment, recovery, return and so on.In recent years, with the adjustment of our farmer-benefiting policies, especiallywith the tax reform which is taken derating agriculture tax as the main body and thefarmer subsidies are increased year by year, the food price has remained high, theagriculture production income of farmers is increasing, the value of rural land ishigher and higher, and with the effect of the global economic crisis, a large numberof migrant workers are returning home, the kind of grain enthusiasm of farmers isunprecedentedly high. On the one hand, these have a positive meaning for ensuringnational food security, improving and enhancing the living standards of farmers, andpromoting harmony and stability of rural society, on the other hand, these also makethe dispute concerning the rural land contracting operating right appear “blow-out”increases. The dispute problems of land contracting have become the importantfactors which are affecting rural social stability.In the trial of dispute cases about the circulation of rural land, involving conflictcoordination problems of many laws and regulations such as General Rules of CivilLaw, Property Law, Contract Law, Land Management Law, EnforcementRegulations for Land Management Law, Rural Land Contracting Law, FarmerProfessional Cooperative Law and so on. The author suggests, legislation shouldperfect the above-mentioned laws and regulations, standardize the main body, object,transfer procedures, and transfer mode of the circulation of land, the effectiveness ofthe circulation contract, the court accepted range and so on, in order to eliminate theproblem of the disunity of application which was brought about by current unclearlegal boundaries or different understanding of provisions as soon as possible.The articles22to24of The explanation of Supreme People’s Court concerningthe problem of applicable law of judging dispute cases which are involving ruralland contracting made a provision of allocation standard about the landcompensation, resettlement subsidies and the attachment on the ground and youngcrops compensation which are produced by expropriating the rural collective land.The People’s Court has made clear the following problems in judicial practices, firstof all, the land compensation uses for the distribution of members of the collectiveeconomic organizations; secondly, the People’s Court shall accept the disputed cases of distribution about land compensation; finally, the legal relation of the disputedcases of land compensation allocation belongs to civil property disputes. Whenjudging, the people’s court should confirm and judge that whether a natural personhas the membership of the collective economic organization, and not to give out thejudgment with benefit contents, clear payment obligation and the specific amount.For the judgment of membership of the rural collective economic organizations,it should start from the natural community features contained by our rural collectiveeconomic organizations, be based on member right theory, consider whether it formsrelatively steady production and life as basic condition, and whether it has thequalification of regular resident in the location of collective economic organizationsin law, and make these the general principles which we should adhere to whenjudging whether it has the membership of the collective economic organizations. Onthe judgment standard problems of determining the membership of the specificagricultural workers of the collective economic organizations, it should treat theacquisition, loss and treatment for special circumstances of membership as a wholeand grasp systematically, and make comprehensive analysis and judgment afterconsidering all sorts of factors.Dispute settlement mechanism of rural land contracting operating right shouldbe perfected from regularizing the action of rural land contracting, perfecting theregistration system of the land contracting operating right, insisting the meticulousand fair trial, enhancing the operational guidance for rural grassroots mediationorganizations, perfecting the insurance system of rural contracting and so on.