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Right Of The Contracted Management Of Rural Land Transfer Problem Research

Posted on:2015-02-20Degree:MasterType:Thesis
Country:ChinaCandidate:R Y DuanFull Text:PDF
GTID:2296330467465440Subject:Environmental resources law
Abstract/Summary:PDF Full Text Request
According to the regulation of "the rural land contracting law",the transfer of right tothe contracted management of rural land is divided into two kinds, one is that with thesigning of the contract and get right to the contracted management of rural land transfer,second is acquired by means of bid invitation, auction or other forms of contractedmanagement of rural land transfer. The latter is a question of completely of real propertyrights transfer, academic circles less controversial. The current controversial is acquired bymeans of household contract right to the contracted management of rural land transferproblems. So this article only discuss with acquired by means of household contract right tothe contracted management of rural land transfer.Transfer as one of the right to the contracted management of rural land transfer, not onlyhas all of the common way of circulation but also has its particularity. With the subcontract,lease and other than temporary transfer, transfer is the remaining term of the right to thecontracted management of land completely transferable to others in whole or in part, and theoriginal contractor out of the original contract relationships flow way. In bearing theimportant function of social security of rural land, transfer of right to the contractedmanagement of land for farmers there is a certain risk. Land legislation of right to thecontracted management of rural land transfer system design has remained cautious, setrestrictions for transfer.With the development of rural economy in our country, in the realization of agriculturemodernization, to realize the process of rural land scale management, the benefit of the ruralland value gradually reveal, the demand of the right to the contracted management of ruralland transfer is higher and higher. But, in practice to the contracted management of rural landtransfer is not, and the way of subcontract, lease is widely, In some places there is not evenoccur to the contracted management of rural land transfer phenomenon. Even if the transferbehavior in some places, exist in the process of transfer and transfer contract is not standard,transfer procedures after the chaos, transfer caused by unknown relationship between rightsand obligations of civil disputes and other problems. In the judicial practice, appear difficultto in accordance with the applicable law is not unified, just trouble. These problems are exposed in the existing land legislation has many drawbacks, for example, failed to clearlydefine the collective ownership of land and the relationship between the right to thecontracted management of rural land, rural land ownership the legal status of the assignor andassignee are not clear, the limitation on the program, a transfer body too much and so on. Inaddition, The current urban and rural binary segmentation of the restriction of the hukousystem,external factors such as the rural social security system is not sound too seriouslyhindered the smooth transfer of right to the contracted management of rural land. Effectiveway to solve the problem of "agriculture, rural areas and farmers" is to realize agriculturalmodernization, rural land scale management, This requires to establish orderly to thecontracted management of rural land circulation market. To establish an orderly to thecontracted management of rural land circulation market, the first thing to solve the problem isright to the contracted management of rural land transfer. Right to the contracted managementof rural land transfer of relevant legislation, at the same time deepening the reform of thehousehold registration system and rural social security system, to promote the orderly transferof right to the contracted management of rural land, promoting to establish and perfect thecontracted management of rural land circulation market has the vital significance. In theresearch of many scholars and social investigation report, on the basis of in-depth study, toform the thinking of writing of this paper. First of all, on the legal nature of right to thecontracted management of rural land transfer clear qualitative. From the point of view, thetransfer is flow under a concept, transfer includes paid and unpaid two forms, paid transferrefers to the need to pay the price of buying and selling behavior, the gratuitous transferinclude the gift, inheritance. According to the current "rural land contract law" regulation, thecontracted management of rural land transfer refers to the contracted management of ruralland people to enjoy the right to the contracted management of land transfer to others, himselfout of the original contract relationships. Is important to emphasize that right to the contractedmanagement of rural land transfer only the land management right, is not the ownership of theland, so there is no lawmakers and some scholars worry about land private, land acquisition.Right to the contracted management of rural land as an independent property rights, right tothe contracted management person is entitled to transfer or not, time limit, a transfer price ofself-determination. People the right to the contracted management of land transfer only theright to the contracted management of rural land more precisely, land use rights, rather thanthe ownership of land, Transfer process does not affect the rural collective economic organizations to enjoy the ownership of the land, the owners shall not interfere with thecontracted management of land transfer. On the legal nature of right to the contractedmanagement of rural land transfer clear positioning, then transfer to the same as the transferof the subcontract, lease, exchange, reveal the transfer of the particularity of its existence.Then, analyzing the status quo of the right to the contracted management of rural land transfer,analyses the existing problems. There are mainly two aspects: one is that compared withseveral other transfer, transfer are extremely rare in the circulation of practice; second, even ifthere is transfer phenomenon, have appeared in the disorder of the behavior is not standard, atransfer program. Then, the analysis to the contracted management of rural land transfer of thereasons behind these problems, there are two main reasons, one is that the current landlegislation is not perfect, second, the relevant supporting system is not sound. Imperfectlegislation mainly reflects in the following respects, one is restricts the transfer of thelegislative ideas do not conform to the rural social development reality. Rigid limit of thelegal system, to the contracted management of rural land transfer poses a serious obstacle.The second is not scientific definition of the rural collective land ownership and therelationship between the right to the contracted management of rural land. Rural collectiveland ownership and right to the contracted management of land is not the traditional propertylaw in the relationship between the ownership and use right, but the property of the twoindependent of each other. Give to the consent of the transfer of right to the contractedmanagement of rural land rights of the party and runs counter to the spirit of the property law.Three is that the current land legislation without clear transfer of the rights and obligations ofthe parties to the contract, and the voluntary transfer of registration principle, bring thebehavior is not standard, a transfer program chaos problems and cause a civil dispute.Because of the lack of clear legal provisions, legal practice is to be difficult can depend on,just according to the dilemma. In addition, the urban and rural intersected the restriction of thehousehold registration system, it is not yet perfect rural social security system, employmentcannot provide long-term and reasonable expectations, the external environment factors tostop the farmers’ willingness to transfer to the contracted management of rural land reducedthe enthusiasm of farmers to transfer of land contracted management of rural land. Finally,based on analyzing the causes of the problem, put forward countermeasure suggestions topromote the smooth transfer of right to the contracted management of rural land: one is toimprove land legislation, shift the legislation idea further relax the limitation on the right to the contracted management of rural land transfer, refining the transfer of the rights andobligations of the parties to the contract, effective improve the registration system to establisha transfer registration principle. Second, deepen the reform of the relevant supporting system,mainly is the reform of household registration system and rural social security system. Threeis to establish perfect system of rural surplus labor transfer.
Keywords/Search Tags:land, right to the contracted management, transfer
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