Legal Structure Of The Separation Of The Three Rights In Rural Land

Rural land reform is concerned with weather the rural revitalization strategy can be realized successfully.At the present stage,the path of rural land reform in China has been identified as “separation of the three rights forms” to rural land,which refers to right to ownership,right to contracting and right to management.Centering on“separation of the three rights forms”,how to build the relationship among the three rights and how to determine the nature of contract right and management right will be the main and most difficult point for researchers who devote themselves to studying rural land reform.This paper will discuss the “separation of three rights forms” in five chapters.Deploying historical analysis,chapter one firstly dissects how China's rural land system transits historically.Then,it concludes lessons learned from the history,which leads to the two institutional contradictions existing in China's current rural land system.One of the contradictions is between small farm management's land fragmentation and increasing demands for land scale management.Thereinto,land fragmentation is resulted from the system of fixed output to households,while modern agriculture demands more lands.The other contradiction is between expanding scale of land circulation and limited circulation of land contracted management right.By falsifying land privatization and land nationalization,Chapter two raises an argument that the direction of China's rural land reform should be based on collective ownership of land and should focus on transforming and completing land contracted management right sequentially.And on this basis,chapter two combs policy documents about “separation of three rights” reform,introduces some theoretical debates in the academic world and accordingly responds these debating points.Chapter three takes land ownership as the study object.It has founds some problems about rural land reform by combing the history of reform and analyzing current legal policies.Specifically,the problems are undefined subjects of land ownership and grammaticalization of land ownership.“Separation of land rights”reform,which is advanced vigorously by Chinese government,may further impact on rural collective land ownership.Therefore,the reform should regard the peasant collective as subject of rural land ownership explicitly and complete corporate transformation of the legal subject who acts on one's behalf.Meanwhile,the reform should perfect the powers and functions of collective ownership,avoiding blurring the right of collective ownership.Chapter four takes land contract right as the study object.It firstly determines the nature of land contract right.Then,it falsifies a traditional viewpoint which regards land contract right as a kind of practice of membership and considers land contract right a kind of membership possessed with property nature.Accordingly,this paper believes that land contact right is actually the land contracted management right after land management right segregated,which means the nature of land contract right is a kind of usufructuary right and its powers and functions should be constructed.As for chapter five,land management right is the study target.It discusses the disputes of land management right's nature and believes the nature of land management right should be obligatory right,which is the basis of establishing land management right.Importantly,property nature of land management right should be highlighted,as well as balancing the rights relation between land contract right and land management right.