The Succession Issues Of Rural Land Contracting Right In The Context Of Three Rights Division Theory

The existing rural land contracting right system is inadequate for the need to advance agricultural modernization and new urbanization. Against that context, in the on Guiding Rural Land Management Right Transfer with Moderate Development of Agricultural Scale Operation published in November 2014, the Party Central Committee proposed the reform-“separation of rights” on rural land. “Separation of rights” on rural land seeks to systematically restructure the existing rural land contracting right regime and to influence the relevant legislative framework. The existing laws are unclear as to the inheritability of rural land contracting right, thus violating the usufructuary property of rural land contracting right and also fall foul of the keynote of the current rural land reform wherein the Party Central Committee emphasizes on the property attribute of rural land. The policy of “separation of rights” on rural land will give rise to the separation of membership right and property right which will affect the succession of rural land contracting right.Through analyzing the systemic effect of “separation of rights” on rural land on the succession of rural land contracting right, this article seeks to demonstrate that land management right is inheritable, so as to provide a theoretical underpinning for the next round of agricultural land reform.The study of succession of rural land contracting right in the context of“separation of rights” on rural land employs a progressive research methodology.The article first analyzes the theoretical basis and system design of “separation of rights” on rural land. the article will then demonstrate the systemic effect that“separation of rights”on rural land will have on the succession of rural land contracting right and arrive at the conclusion that land management right is inheritable after rural land contracting right inheritance system passed the systemic hurdles. Lastly, the article will study the normative system in the post-“separation of rights”era in three aspects – the subject of the right of succession, the substance of the right of succession and the effect of the right of succession. The article combineslogical analysis, value analysis, empirical study, historical study, comparative analysis and other research methods. on the subject of the theoretical underpinning and system design of “separation of rights” on rural land,through a review of the historical background and objectives of the current rural land reform and a summary of the current research results on the legal framework of “separation of rights” on rural land, the article endeavors to present the author’s views on the nature and practical implication of“separation of rights” on rural land. With respect to the issue of succession of rural land contracting right, the author will address it from the angle of the legislation and judiciary respectively. Through a comprehensive review of the relevant legislations and judicial precedents, the author will reveal the legal reasoning of judgments on dispute on the succession of rural land contracting right and discuss the inheritability of rural land contracting right. Further, by way of logical analysis, the author will demonstrate that “separation of rights” on rural land renders status right severable from property rights thus supporting the contention that land contract right is not inheritable but land management rights. On the basis of the foregoing analysis, the article then seeks to expound the subject, the substance and the effect of the right of succession after rural land rights are separated. Through a historical review of the concept of “household”as a civil subject, the author reaches the conclusion that the treatment of“peasant household”as the subject of rural land contracting right results from the influence of the tradition household standard of Chinese Legal Genealogy. The evolution of the moral foundation of civil law from status to contract renders it inevitable that the subject of succession right of land management right will eventually break free from the constraint predicated upon peasant status. The substance of the succession right of land management rights land management right rather than land contract right, a conclusion compelled by the distinct nature of the two rights. Lastly, through a thorough consideration of the nature of “the contracting party consent”, the article explicates the effect of succession right of land management right, namely the contracting party consent is not necessary for the succession of land management right and the successor is entitled to legally transfer, create a security, subdivide shares and set up a trust arrangement as regards the land management right.Rural land contracting rights the utmost rural land right that peasants currently enjoy. the systemic reform of rural land contracting right is an important part of the ongoing rural land reform, has profound implications on safeguarding collective land ownership and modernization of rural area management and is relevant to the success of the current rural land reform. Since the third plenary session of the 18 th Central Committee of the CPC, the Party Central Committee has established the policy of strengthening the property attribute of rural land rights. In the context of separation of rights” on rural land, ensuring the inheritability of land management right is an important avenue toward that goal. After separation of the rural land rights, rural land contracting right is divided into land contract right and land management right, corresponding to the component of status right and usufruit in rural land contracting right respectively. The non-inheritability of land contract right and inheritability of land management right is consistent with the normative logic of modern property law.