Legal Construction Of Land Management Right Under "the Separation Of The Three Types Of Rights"

At present,in rural collective land,there are two kinds of property rights,collective land ownership and land contract and management right.Although the land contract and management right separates from collective land ownership,but due to the particularity of system in our country,the collective ownership is established on the public ownership as the logical fulcrum,so it’s different from the private rights.The civil law general specification is difficult to apply to the exercise and protection of the collective land ownership,collective ownership of land power is limited.Compared with general ownership,its rights are not satisfactory and the realization of the right is not ideal.In the early 1980 s,the establishment of the household contract management system resulted in the separation of the land contract and management right from collective ownership,which promoted the production enthusiasm of the farmers and released the benefits of the land.This usufructuary right is built on the basis of China’s national conditions,and has the characteristics of the usufructuary property of civil law,and also has the characteristics of the construction of socialist legal system in China.The establishment of land contract management,which supersedes the status of collective land ownership in the rural collective land rights system,has become the core rights of the rural collective land rights system in China.With the deepening of reform and opening up and the acceleration of urbanization,many farmers began to leave their hometown gradually,and the transfer of land contract management right became a reality.The collective land of our country is burdened with the social security of peasants,so as the land contract management right to the separation of ownership,it also has a strong social security attribute.The conflict between social security attributes and real right of land contract management right has caused the problem of the transfer of land contract right.Land of finely operation can’t meet the needs of the current rural economic development,or to some extent become the bottleneck of the agricultural modernization,unable to achieve the best effect of the rural land.In this context,the central government has issued a number of documents to put forward the "the separation of the three types of rights" and required timely revision,formulation and improvement of the law.The purpose of "the separation of the three types of rights" is to release the right of management and further release the utility of land resources.The debate about the "he separation of the three types of rights" policy focuses on the nature and rights of the land management right after the separation,which is also the key to the design of "the separation of the three types of rights" system.Considering the system of rural collective land rights in China,the collective land in China cannot be the object of disposition compared with the traditional continental law system.The author thinks that the land management right separation from the land contract management right transfer should be structure as a kind of usufructuary right,only in this way can solve many problems existing in the current right to the contracted management of land transfer,and can meet the reform goal of "the separation of the three types of rights".Based on the numerus clausus principle,the research of the lease right’s changing of real right and the development of the real right object,theoretically discusses the possibility of land management right in rem,and the relevant system of land management right in rem,to build our socialist characteristics of rural land rights system.