Research On Nature Of The Rural Land Management Right

To find out the truth of the nature of rural land management right is inseparable from the background of the creation of the right.The abandoned farmland and finely management of farmland are the practice background of generating rural land management right;and the lack,imperfection and restriction of farmland circulation system are the system background of generating the rights.Along with the national top-level design formally proposed the separation of “farmland ownership,contract right and management right” reformation,the rural land right of management has also been legalized by “Administrative Procedure Law”.Moreover,The research on the “Three Rights separation” in the academic circles has become a hot topic instantaneously,among them,especially the nature of rural land management.The Law circle has formed three kinds of viewpoints on this problem,that is: negation,creditor's rights and real right.The common starting point of these doctrines is whether the right to land management is necessary to separate from the right to land contractual management as a property right? Is it theoretically feasible to separate? In the negative,it is believed that there is no separation of the rural land right of management in the practice of farmland transfer,so the so-called rural land right of management is only a generalization of the creditor' right circulation of the rural land contractual management right,and the rural land contractual management right can be modeled as a complete usufructuary right.According to the creditor's rights,the practice of farmland transfer indicates that the rural land management rights have been separated from the rural land contractual management right,because of the right's generation through the way of the transfer of creditor's right,such as subcontracting,renting,and so on,then the right is the creditor's right,and it is unnecessary and infeasible to shape it as the real right.The real right can be divided into the derivation of rural land contractual management rights,the derivation of collective land ownership and the mixing.The derivation of rural land contractual management right deem that the rural land management right also arises from the practice of creditor's rights in the rural land contractual management right,but it should be molded into the real rights,the way of its creation is the parallel usufructuary right,the right of usufructuary right of Rights(secondary usufructuary right)and the secondary rural land contractual management right.However,some scholars believe that the rural land management right can be separated from the rural land contractual management rights through the theory of power separation.The derivation of collective landownership claims that the rural land management right as a usufructuary right should be derived from collective land ownership.Mixing theory combines the two viewpoints,that the rural land management right can be derived from the rural land contractual management right,but also can be derived from collective land ownership.Easy to find,the reason for this controversy is that scholars who hold various viewpoints have different approaches.It is mainly embodied in a variety of viewpoints in the identification of the production of the rural land management right,some from the perspective of which must to be,some from the perspective of which is to be.The argument of various viewpoints also shows that the theory of the separation of “farmland ownership,contract right and management right” does not form a general view,that is,the policy implications of the theory need to be specifically clarified.Through the analysis of existing research,the separation of rural land management rights and the creation of real right are necessary,however,the existing research on the right to shape the feasibility of the study is not enough.Therefore,to developing the further study of the right,we need to respond to the shortcomings of existing research,and put forward more reasonable theoretical design in line with the policy objectives and legal logic of the separation of “farmland ownership,contract right and management right” theory.The separation of “farmland ownership,contract right and management right” theory proposed by the national government is not a simple escalation of the theory advocated by the economics circle.The rural land management right can only be defined as a real right from the idealistic perspective.However,the right that aiming to protect the stability of farmers' contractual right is included in the consideration of reform of the separation of “farmland ownership,contract right and management right”.In other words,the reform of the separation of “farmland ownership,contract right and management right” should find a balance between stabilizing the peasant's contractual right and liberalizing the rural land management right,which is consistent with the solution to the defects of the system of the rural land contractual management right.In addition,with the limitation of “doctrine of one thing”,therefore,the rural land management rights should be the land contractual management right without the“Social Security attribute”.As a purely property right,the rural land management right is derived from collective land ownership.The peasant household contract right,as the self-profit right in the member right,will play the role of the social security function and stabilize the contracted relationship between the peasant and the collective.The acquisition ofthe rural land management rights,in addition to the farmer's contract,can be achieved through the transfer of farmers' rural land management rights,and also through the collective exercise of collective land ownership by the members of the way to achieve.in combination with the enactment of the real right of “the Civil Code” and the modification of “the law of rural land contract”,the legislative design of rural land management should be carried out in name,time limit,registration,circulation restrictions,inheritance,rights termination etc.