Cognizance On The Validity Of Swap Contract On Contracted Land Management Rights

Thi s paper int roduces a cas e of the dis pu tes over swap contract on contracted land management rights tried by the first instance and second instance of Hezhou City in Guangxi Zhuang autonomous region and the two level courts hold different opinions on the cognizance on the validity of swap contract on contracted land management rights between Zuo Moubao, Wei Mouying and Huang Mousi, Zuo Moulong in this case, in which the first instance denies the validity of swap contract while the second instance recognizes the validity thereof. Through analysis, this paper finds that the two level courts have different opinions on the validity of swap contract on contracted land management rights,the referee standard grasp,it is necessary to define the swap contract on contracted land management rights and nature of the contract,to relevant laws and regulations and judicial judgment to sort out,to summarize identified swap contract effectiveness of general legal rules.This paper is composed of four parts, about 16,000 words.Part One introduces a case of the disputes over swap contract on contracted land management rights tried by the first instance and second instance of Hezhou City in Guangxi Zhuang autonomous region and the two level courts hold different opinions on the cognizance on the validity of swap contract on contracted land management rights between Zuo Moubao, Wei Mouying and Huang Mousi, Zuo Moulong in this case, in which the first instance denies the validity of swap contract while the second instance recognizes the validity thereof. Through analysis, this paper finds that the reasons for the different opinions lie in that the two level courts have different opinions on whether non-written form swap contract on contracted land management rights is valid or not, whether swap contract on contracted land management rights without stipulated exchange period is valid or not,whether no agreement from the contractor and no filing to the contractor for record influences the validity of swap contract on contracted land management rights and whether swap contract thereon signed between the farmers belongs to different collective economic organizations.Part Two introduces the basic theory on swap contract on contracted land management rights, which refers to a legal agreement signed between farmers and farmers to realize theswap and circulation of contracted land for the purpose of facilitating cultivation and taking into the consideration the farmers' interests and demand. Swap contract on contracted land management rights is a contract on the circulation of contracted land management rights with the nature of civil contract and somewhat administrative color. There are similarities and differences between swap contract on contracted land management rights and subcontracted contract on contracted land management rights, leasing contract thereon and transfer contract thereon.Part Three analyzes the cognizance on the validity of swap contract on contracted land management rights and concludes that in principle swap contract on contracted land management rights without written form is invalid but the form defect of such contract can be remedied through performance; no stipulation on swap period does not influence the validity of swap contract on contracted land management rights, the two parties may make supplementary stipulations on swap period and if there is no supplementary stipulations thereon, swap contract remains valid within the remaining contracting period; if other members within the collective economic organization do not claim priority over the swapped land within the statutory period, swap contract on contracted land management rights agreed by the members from different collective economic organizations has legal effect.Part Four comes to the enlightenment through the analysis on the case. Through the analysis on the validity of swap contract on contracted land management rights between Zuo Moubao, Wei Mouying and Huang Mousi, Zuo Moulong, this part concludes that the swap contract is valid. The enlightenment from the case include: prior to the improvement on the legislation and the promulgation of the uniform judicial interpretation, it is appropriate to take lenient attitude towards the cognizance on the validity of swap contract; if swap contract keeps the legal bottom line of “land circulation does not change the nature of collective land,nor does farming purpose and does not impair farmers' rights and interests”, it is inappropriate to totally deny the validity of swap contract, but it is necessary to fully consider the social effect and legal effect of the case and allow the subject of swap contract to make defect correction and afterward remedy.