Analysis And Reconstruction Of The Land Contractual Management Right Under The "Three Rights Division" Pol Icy

Since the reform and opening up,China has implemented the household contract responsibility system,and the land contractual management right appeared.Under the legislative evolvement of a series of laws and regulations,the legal nature of usufructuary right finally established by "Property Law".However,with the continuous development of modern society,land contractual management right did not work well in practice.Its duality of congenital nature made it difficult to flow and could not exert its due function as usufructuary right.The rural land "Three rights division" policy creatively dealt with the dual attribute problem of the land contractual management right,the land contractual right reasonably inherited the identity attributes of the original rights,and realized the social security function of the farmland;the land management right inherited reasonably the property rights of the original rights realized the transfer function of agricultural land as property and finally promoted the organic unification of fairness and efficiency.The article is divided into four parts:The first part is the introduction of the legislative nature of land contractual management right.The article points out that the land contractual management right has the nature of the creditor's right when it is first recognized.Then,in the continuous development of the law,it gradually possesses the property rights and is eventually used as the benefit by the "Property Law" usufructuary right,as our peasants have enjoyed an important property rights.The second part is to raise the question,the land contractual management right does not work well in practice and the Academic Debate on the "Three rights division" policy.First of all,this paper introduces the restriction of the flow of land contractual management right under the background of agricultural scale management.That is to say,because of the obstacles in the process of land contractual management,the agricultural land plots were scattered and could not adapt to the large-scale operation of agriculture.Then,in order to solve the problem of inefficient operation of land contractual management right,the Central Government proposed to cope with the "Three rights division" policy,and expected to realize the free flow of rural land so as to adapt to the large-scale operation of agriculture and eventually promoted the process of urbanization in China.However,there is a controversy over the nature of land contractual right and land management right,the design of specific systems in academia.The third part is analyse the problem and find that the real bottleneck of the land contractual management right running in practice is its internal duality,both identity and property.First of all,this paper analyzes the property of dualistic property and puts forward that it is necessary to speed up the property transfer function of right.Then,it analyzes the identity property of dual property,including the system of identity and property of land contractual management right.Lastly,it analyzes the conflict of the dual attribute of the land contractual management right and points out the concept of fairness and efficiency run counter to the value orientation,which is the substantive reason for the conflict between the identity attribute and the property attribute of the land contractual management right.The fourth part is to solve the problem,and to reconstruct the right of the land contractual management right under the perspective of "Three rights division" policy.Firstly,it points out that the dual attribute of the needs to be separated urgently.Secondly,the separation of the dual attribute of the "Three rights division" policy and the dual attribute of the land contractual management right is analyzed.There is a strong coupling in the solution to the problem.The policy implies the separation of the dualistic nature of the central-led land contractual management right.Thirdly,the author designs the system of the land contractual right and the land management right under the "Three rights division" policy respectively,mainly including the location and characteristics of these two rights,and the subject and the content of the two rights.As well as the duration of its existence.Finally,the author proposes the legislative conception of the land contractual right and the land management right.