Analysis On Contractee’s Consent Rule During The Transfer Of Land Contract Right

The transfer of contracted land in rural areas shall be subject to the consent of contractee, which constitutes a substantial restriction on the transfer of rural land. Through the interpretation of Property Law and judicial interpretation and other provisions of the law, this paper will combine with the judgment on the contract right transfer dispute case; analyze the contractee’s agreement on the concrete application of the rules in the judicial practice. Then this paper will further elaborate the application of the rules, which not only limits the farmers’autonomy to transfer land contract right but also causes damage to the trading rules of the market, and the author will proposed the rationality of implied consent principle in the judicial practice.Except the introduction and conclusion, there are other four parts in this paper: First, the contractee’s status in transfer of the right of the contracted land will be analyzed from the perspective of legislative norms, in the transfer system of the right of contracted land; the contractee’s consent principle has been gradually established with the process of reform. However, the analysis and comparison of the property right of the rural land and the contracting right show that the contractee’s consent principle has many limitations to the farmers’using their contracting right. Because the ownership of rural collective land and land contract right are not like the relationship between the ownership and the use right in the traditional property law, because these two rights are independent. Although usufructuary right also has some limitation, however, that land contract right transfer needs the contractee’s consent is too strict, which does not fully reflect the property of the land contracting right and not protect the interests of land contractor. The contractee’s consent principle does not comply with the attribute of contracting right usufructuary right.Second,this paper would analyze the land transfer dispute cases from the aspect of judicial interpretation and judicial practice, and eventually found the contractee’s consent principle has been basically established by the judge in the judicial practice, and there are a few situations that the implied consent principle and subsequent ratification are agreed in the trial of the cases. Then the third question focuses on the analysis of the positive and negative significance of the implied consent principle by contractee.With the advance of China’s reform process, the land marketization is the best choice for farmers. Therefore, it is concluded that the contractee’s consent principle have hindered the marketization of the land transfer can actually damage the interests of the farmers and the basic rules of the market transactions.In the last question, the author puts forward legislative proposals that the restrictions to the transfer of rural land contracting right should be cancelled. When the judges deals with contract disputes of rural land contract right transfer, if given that business effectiveness is necessary to the contract, make appropriate deduction according to the law or policy of the contract agreement, and then adopt the contractee’s consent principle in the contract agreement to resolve disputes.If the contractee’s reply period can be treated as an implied term, the legal reasons to limit the contractee’s disagreement on the transfer of land contracting right are feasible methods. Because the key problem of the circulation of rural land contracting right is not the limitation of land transfer but how to use legal system to regulate the land transfer, which is to make the farmers to benefit from the land transfer. This measure can fully respect the disposition right and the decisive right to transfer of the farmers.This makes the transfer of agricultural land contract rights more freedom and flexibility, it can not only achieve the interests of farmers, but also establish a healthy circulation market to reduce unnecessary litigation dispute which is harmful to honesty.This paper, combines with the Property Law, Rural Land Contract Law and the judicial interpretation, applies normative research methods to illustrate the theoretical background and the legal basis of the rural land contracting right’s transfer. It also adopts the method of case analysis to analyze a series of problems on the transfer in the process of China’s rural land contracting right and further provide suggestions on how to overcome the disadvantage of the contractee’s consent principle according to the latest legislation and judicial interpretation of the provisions of the contracting right.