The Legal Nature Of Land Contract Right And Land Management Right Under The "Separation Of Three Powers"

The practice of “three-power split” reform of rural land in China is in full swing.Combined with the background of compilation of civil code,it is more important and urgent to change the land contracting right and land management right from economic expression to legal expression.How to characterize the two new types of rights,such as land contracting rights and land management rights,is related to the construction of rural land rights system in China’s current legislation,and even affects the success or failure of China’s rural land legal reform.The full text is divided into four parts.In the first part,the different theories about the legal nature of land contracting rights and land management rights are sorted out,and the corresponding analysis is carried out on this basis.With regard to the legal nature of land contracting rights,there are mainly member rights and usufructuary rights.The author supports the theory of usufructuary rights.The legal nature of land management rights mainly includes claims,usufructuary rights,dual rights and collective rights.The author supports the use of beneficial rights.In the first half of the second part,this paper proves that the land contracting right is the usufructuary right,because the object of the land contracting right points to the property income,which is in line with the logic of generating rights,and the land contracting right comes from the land contracting management right.It has been stipulated that the land contractual management right is the usufructuary right,and its nature is the same as the land contractual management right.It will not lead to the illusion of land contractual management rights,but also show the value and significance of the independent land contracting rights,and meet the requirements of the parallel separation of the two powers and the separation of the three powers.It is conducive to stabilizing the relationship of farmland rights,giving play to the market value of farmland and issuing the largest land dividend.This is the proper meaning of the "three powers split" policy.In the second half of the second part,the land management right is the “secondary” usufructuary right,and the land contractual management right is the usufructuary right set on the “ownership” of the object.The contractual management right is derived,and it does not conflict with the nature and content of its parental rights.Instead,it is logically fluent and consistent,conforming to the rules of the private law in relation to the logic of the creation of property rights,and satisfying the diversified and multi-level property rights of agricultural land relations.Utilization needs.The mitigation of legal rights,the expansion of the law,the theory of legal authorization and the theory of set-up transfer can also provide strong support for the property rights of land management rights.In the third part,the article explains the property rights of land contracting rights and land management rights,which can improve the farmland rights structure in law,meet the farmland transfer financing in practice,and respond to the value of “three powers separation” in policy.The right structure of rural land under the "three-power split" is changed to: firstly,collective land ownership,and then the land contractual management right of the nature of usufructuary rights.At this time,the land contractual management right faces two choices,and the contractor can.If you choose to operate your own land,it has nothing to do with the separation of the three powers.It is also implemented in accordance with the relevant laws and regulations on the land contractual management right under the previous separation of the two rights.If the contractor chooses to transfer the management right to a third party,this The time is the right positioning mode under the “three powers separation”.The contractor still enjoys the usufructuary right to the land,but only transfers part of the usufructuary right of the land to the management right holder,and the contractor When using the beneficial rights in the operation,it is restricted by the scope of the right to use of the right holder.The right to be exercised by the management right holder cannot be exercised temporarily.It also advocates that land management rights adopt registration effectiveness and can carry out mortgage guarantee financing.In the fourth part,the paper emphasizes the separation period of management rights.It is recommended to set the minimum operation period to four years and the longest operation period to seven years.The parties can choose the separation period within four to seven years.In the separation of management rights,it is proposed to establish a "fixed plus floating consideration mechanism." It is also recommended that the registration of land management rights should follow the relevant registration system for land contractual management rights and publicize the relevant contracts for the separation of land contracting rights from land management rights.Finally,the system choice of non-agriculturalization has been improved from the perspectives of market access of operators,state policy subsidies,and supervision of farmers.