Research On The Limited Inheritance Of Family Contractual Management Right Under "The Three-Right Separation"

Presently,China's rural land policy actively explores the long-term realization form of the family contractual management right.The report of the 19 th Party Congress pointed out that the current round of land contract expires and then extend for another 30 years.The inheritance of rural land is an unavoidable issue.The promulgation of the "the three-right separation" policy provides an opportunity for the study of the inheritance of family contractual management right.The purpose of the paper is: the limited inheritance of family contractual management right and the related system construction.First of all,it combines and reviews the legislative evolution and judicial practice of inheritance of family contractual management right.The current law in China distinguishes between contractual proceeds and contractual management right.It only explicitly stipulates that the contractual proceeds can be inherited in accordance with the provisions of the inheritance law,and further distinguishes the contractual management right obtained by different contractual methods,the “ four wasteland ” contractual management right obtained by the way of tendering,auctioning,and open negotiation,as well as the forest land contractual management right obtained through family contractual,may continue to be contracted during the contracting period.Most judgments in our judicial practice do not recognize its inheritance,but there are still a few local courts that still support inheritance.This article believes that,under the goal of modern agriculture,the national policy encourages and guides the large-scale use of rural land,and the method of transfer of family contractual management right should include inheritance.Setting special rules in the concrete way of inheritance and requiring that heirs have agricultural management ability are the basic trends of inheritance system of family contractual management right.Secondly,it summarizes and evaluates the academic viewpoints that family contractual management right can inherit or can not inherit.The negation theory focuses on the social security function and the identity of the main body of the family contractual management right.However,it conflicts with the position of the family contractual management right,and hinders the transfer of the family contractual management right.Affirmative theory discusses from the perspective of the property attribute of the family contractual management right and the meaning of allowing inheritance.However,it neglects the agricultural resource attributes of rural land,and will result in the risk of fragmentation of rural land.The limited inheritance theory is based on the fact that the substantive main-body of the contractual management right is the farmer household's membership and the identity feature have been weakened in the circulation stage.The limitation on inheritance is mostly reflected in the main-body of the inheritance and the division method of inheritance.Thirdly,it analyzes the feasibility of the inheritance of family contractual management right under “the three-right separation”.The current system of affirmation of the right of land contractual management right is conducive to the individualization of member rights of collective property rights of farmers,and the contractual management right is conditional and capable of quantitative division.However,rural land have property attributes as well as resource attributes and should adopt a method of limited inheritance.The "three-right separation" policy separates land ownership,land contractual right and land management right.Land contractual right refers to the member of the collective economic organization have the right to contract rural land.It should be qualified as a member's right.The rural land policy does not negate the concept and the use of the contractual management right.Therefore,the concept of contractual management right is still used in this paper.The land management right is the usufruct created by the division of contractual management right when rural land is transferred.It refers to the right to occupy the contractual land within a certain period of time,autonomously organize production,cultivate and dispose of products,and obtain corresponding income.The policy of "three-right separation" enriches the object of rural land inheritance.The transfer of rural land have an impact on the scope of the inherited object,the ability of the main-body of the inheritance and the rules of inheritance,it should be discussed separately.Finally,it compares and analyzes the inheritance of family contractual management right in China and the differences in inheritance systems in comparative law.Relevant provisions of developed countries and regions all require that the main-body of the inheritance possesses agricultural management ability.These developed countries andregions also promote single succession of rural land and the younger of the inheritors,and provide economic compensation to the heirs who have not yet obtained the rural land.For rural land,developed countries have adopted the basic laws to stipulate the minimum cultivated area system and ban the re-segmentation,and the special small-scale rural land is merged and processed.The paper finds that the inheritance of family contractual management right should adopt the method of limited inheritance.Firstly,in terms of inherited objects,it should be discussed in separate situations,when the rural land does not circulate,the object of limited inheritance includes only the contractual management right.When the rural land circulates,the object of limited inheritance includes the contractual management right and the land management right,both of which are inherited by different subjects of right according to the same limited conditions.Secondly,in terms of the main body of limited inheritance,it adopts the one-person inheritance system for rural land and requires the heir to have the capacity for agricultural operations.In view of the current lack of social security in rural areas in China,at this stage,rural land should give priority to permitting the inheritance of an entity that has the ability to operate in agriculture and has the qualifications of a member of a collective economic organization.Thirdly,in the method of dividing of the limited inheritance,the system of minimum cultivated area of rural land is adopted and no further division and transfer is allowed.Above this minimum cultivated area,only one heir can be inherited and the special small-scale rural land can be merged.In addition,economic compensation should be given to heirs who have not yet obtained rural land.Fourthly,in the inheritance of subrogated property rights in rural land,if the usufruct of rural land are lost,deformed property acquired by the original right holder belongs to its general heritage,and the above-mentioned method of limited inheritance does not apply.If land contractual management right is incorporated into a corporate corporation,the original right holder obtains the corresponding preferred stock.If the original right holder dies,the successor has the right to inherit the stock rights according to law.Because the land management right does not support the survival benefit,it does not need to set up preferred shares.when rural land is expropriated,it should distinguishbetween the contractual management right and the land management right,and adopt the mode of compensation respectively.For the land management right,complete compensations are the principle,and the price of the nearby market are the compensation standards.When the deceased dies,the compensation is vested in the category of his inheritance and may be inherited by his successor.Finally,an additional element of validity shall be added to the testate succession and other inheritance methods of family contractual management right,that is,people with usufruct shall have ecological obligations for natural resources.If the person with susfruct violates ecological obligations and violates the principle of sustainable utilization,the wills,bequests,and bequest agreements established are invalid.Under inheritance methods such as testament,the restrictive conditions applicable to the inheritance ability of the successor and the division of the rural land are the same as the legal inheritance.It is only that the scope of the testator,the bequeathor and the supporter is wider than the scope of the legal heir.Except for legal heirs,it also includes natural persons,organizations,and countries with the ability to manage agriculture.