A Study Up On The Circulation Of Contractual Right Under The Regime Of "Division Of Three Rights"

The rural land is not only the most fundamental means of production for the development of agriculture in China,but also serves as the basic safeguard for peasants' life.Pursuant to the regime of land in China,the ownership of the rural land belongs to the collective,and each peasant household thereof enjoys the contractual right of land.In this context,it is also one of the quite important rights for a peasant to circulate its contractual right of land.Comparing with the rapid change and development in rural community and outside economy,as well as the growing promulgation of relevant new policies,the laws and regulations in effect lag behind the social development.In addition,the regime of “division of three rights” described in the No.1 document of Central People's Government of 2014 is to extremely bring the function of property right of cultivated land into full play,and also opens a new window for the circulation of the contractual right of rural land.This,in turn,calls for laws and regulations to regulate related activities and disputes.Given the circulation method of contractual right of rural land is a specific expression of the abstract notion thereof,this paper will focus on studying this legal system by mainly analyzing its circulation means.Specifically,apart from the Sections “Introduction” and “Conclusion”,this paper is totally divided into five sections:Section one starts by dissecting certain basic concepts,i.e.contractual right of land and the circulation of contractual right of land,and then enhances the conception of contractual right of rural land,coupled with the understanding of the circulation thereof.Section two discusses the unreasonable limitations under the laws and regulations against two circulation methods,i.e.transfer and interchange from three aspects: legal purpose,legal means and legal effect.Then this part will argue that leasing and subcontracting also discussed by Professor Cui are de facto the same circulation method and two corresponding viewpoints shall be regarded as one.Section three will firstly introduce a new exploration upon the contractual right of rural land in the new policy of “division of three rights”.Under the background of fully exploiting the function of rural land initiated by the regime of “division of three rights”,this part next will study the feasibility and legal effect of circulation methods established by the parties themselves.Section four will mainly study the central issue of the revolution of “division of three rights”,i.e.the management right of land.After defining the nature of management right of land under the system of “division of three rights”,this portion will analyze the necessity and feasibility of shaping the management right of land into a real right.Section five will further assess the circulation of management right of land(via the path of mortgage)in practice,and discuss certain issues related to the mortgage of management right of land,including confirmation,registration and certification of such right,enforcement of the right to mortgage,the establishment of a risk-preventing mechanism,relevant support policies from the government,in order to have a deeper understanding of the new ways to circulate the rural land under the regime of “division of three rights”.Two research methods that are mainly adopted in this paper are as follows:One is “Value Analysis”.The value of laws,to some extent,reflects requests of people towards laws,therefore,when a legal system upon the circulation of the contractual right of rural land is created,it is essential and inevitable for us to accept certain value guidance,carry out necessary value judgment,and then implant such value into specific norms via as objective and reasonable ways as possible.In this paper,the method of value analysis is adopted to meet the jurisprudential value under China's national situation,and come up with corresponding amendment suggestions for our country's current social situation in rural community,outside economic environment,business operation model and policies.Another is “Empirical Analysis”.In order to have a better picture of the new exploration upon the contractual right of rural land under the system of “division of three rights”,this paper analyzes certain pilot cases,and then discusses its originality,existing problems and corresponding solutions.The method of empirical analysis is beneficial to dissect the legal system's function that is both to be and being.