Research Of The Problems On The Law Application Of The Rural Land Transfer

In the new era, improving the legal system of rural land transfer is of great significance to make the farmer rich, to realize agricultural scale operation and to speed up rural urbanization. Under the intricate historical backgrounds of the two round of land contract extension, the reform of forest tenure, the policy of benefiting the agriculture, and the crisis of the global finance, and in the light of the real situation of agriculture and forestry in Jiangxi Province and other underdeveloped province, this paper uses empirical research method to put forward the countermeasures for law application, rules perfection and machanism reform based on the judicial practice.To sum up the basic situation of the rural land transfer in Jiangxi Province in the past five years, it is found that although the number of disputes for the rural land transfer is few, the kinds of judicial disputes are more difficult to deal than other civil and commercial ones. Currently, there are three characteristics about the disputes of the rural land transfer:first, the anomie of transfer implies the absence of three parties; second, the serial lawsuits highlight the complicate relation in law; third, litigiosity from the farmers makes the fights difficult to quell. Consequently, the court have to face four major problems, that is, the facts and evidence adoption is intricate, the changeable multicomponent system of norms is difficult to grasp, the dispute resolution is difficult to achieve the two effect and judicial conservatism become helpless policy.Through value analysis of law application of the rural land transfer, this paper proposes that three conflicts of interests exits in the legal policy system of the management right to contract the rural land:the farmer’s living benefit and the rural land benefit; the collective land ownership and usufruct; real right, creditor’s right and the right of identity. All kinds of difficult cases in judicial practice often embody the trade-offs between the various interests. Multiple interests game is covered in the legal relations. Therefore, the discretion of the judge is to adjust and balance all kinds of interests in a basic principle of fairness, while considering the trial concrete application of the principle of fairness under the backgrounds of changing circumstances, definitig the unclear agreement, respecting the folk customs and protecting agricultural production.This dissertation presents the relevant advice about improving the law application for the judge and perfecting the legal system of the rural land transfer. In this paper, the three major issues of the main body, the way and the procedure of transfer are discussed in depth, including the following problems of entities and procedures:the analysis of the farmers as the main body of transfer; the review the legal status of the collectives and the anti-rent; the transfer of the household land contractual management right and its rental, subcontracting, mortgage, inheritance and legacy support; the subject and manner of exercising the right of employer’s consent; the legal effect of registration and warrant of the land transfer contract.