Study On The Transfer Of Land Management Right Under The "Three Powers Separation"

In order to adapt to the changes in land use relations brought about by the development of agricultural productivity in China,the Central Series of Documents proposed and explained the further improvement of the policy of “separation of powers”.The focus is on “stabilizing contracting rights and releasing management rights”.The goal is to smoothly cultivate new agricultural business entities,to meet the needs of moderately-scale agricultural operations,and to improve the efficiency of modern agricultural operations.The law must respond to the policy will of “land management rights”,and it is necessary to make certainty about the legal nature of land management rights when constructing a new type of rights system for agricultural land “separation of powers”.Considering the nature of property rights,land management rights do not conform to the logic of private rights generation.Too much mutual property rights will lead to the illusion of collective land ownership and the ambiguity of land contractual management rights.The land management right separated by the land contractual management right(subcontracting),shareholding and other forms of transfer shall only have the attribute of creditor’s rights;the transfer form such as swap and transfer shall only change the main body of the land contractual management right,and the new one cannot be separated.Land management rights.Under the “separation of powers”,the land management right should be included in the scope of creditor’s rights,and the rights structure of “land collective ownership(self-property rights)-land contractual management rights(utilitarian rights)-land management rights(debts)”should be adopted.This not only conforms to the logic of generating land management rights,but also avoids the false ownership of land collective ownership and the falsification of land contractual management rights,which is conducive to stabilizing the operating expectations of land management owners.Although the newly revised Rural Land Contract Law has formulated many institutional norms for the transfer of land management rights under the policy of “three powers separation”,according to the actual implementation of the current transfer of rural land management rights in China,the following problems still exist: The relevant supporting measures for management rights are not in place,which leads to the farmers not being able to carry out the transfer activities independently and can only rely too much on the collective economic organization.Therefore,it should provide a unified contract text and corresponding management for the farmers,and build a professional transaction for the transfer of land management rights.The platform and the value assessment and disposal mechanism of the financing guarantee prepare the preconditions for its own transfer;the financing guarantee issued by the land management right is not consistent with the property law on the effective date of the contract,and it is necessary to register the confrontationism to protect the right holder.The legal rights and interests;in order to alleviate the burden of land management rights,the contractor’s “right to consent” needs to be transformed into the “copying right” of the contractor;in order to ensure that the land management right holders can carry out agricultural production on the land,the remaining land should be The minimum flow of land management rights is set proportionally within the contracted operation period In order to prevent the intensification of “human-land conflicts” within the collective economic organization and improve agricultural production efficiency and land utilization rate,it is advisable to differentiate the farmers who have a large number of contractors and the contracted land with a relatively small number of contracted land.Farmers engaged in agricultural production are given priority in the transfer of rights.