Research On Land Management Right In Rem

Does the right of land management can be converted into real right? It's a hot topic in the field of theory and practice in China.There are three main reasons to study this problem.Firstly,the need to reform practice.under the farmland right system of "separation of two rights",objectively,agricultural production is decentralized and farmland utilization is fragmented and management mode is primitive.Farmland circulation isn't smooth,at the same time,financing guarantee effect isn't good,and farmland is abandoned and idle and farmland value realization blocked;The interests of agricultural operators are out of balance.The protection of farmers' rights and interests needs to be improved,and it's difficult to cultivate a new type of agricultural operators.Secondly,the need to perfect legislation.Because of this,the newly revised law on rural land contracting isn't consistent enough in the regulation of land management right.There are defects in the design of farmland right system,and it fails to fully implement the policy of "separation of three rights" of farmland.The newly revised land management law doesn't stipulate the farmland management right system,the situation of "different rights with the land" still exists,"the system of collective land circulation is not perfect" and other prominent problems.The civil code ? real right compilation(draft)has not fully implemented the "three rights separation" reform of agricultural land,the real right system of land has defects,the collective land ownership has not been improved,and the design of land management right system is too simple.Thirdly,the need of theoretical construction.This is because scholars have questioned the theoretical legitimacy of the conversion of the right to the management of agricultural land,believing that the conversion of the right to the management of agricultural land violates the principles of "one property one right" and "real right",and there are problems such as the logic of rights generation.The core of the above questions is whether it is necessary to change the right of land management right? How to resolve the theoretical obstacle to the conversion of land management right? Is it feasible to change the real right of land management right? Can the risks caused by the change of the ownership of land management rights be resolved within the existing institutional framework? Therefore,this paper will focus on the necessity,legitimacy,feasibility and legislative perfection of the conversion of land right of management right,and make a comprehensive and systematic study on the practical basis,theoretical basis and risk resolution of the conversion of land management right in rem.The necessity of land management right in rem is shown in the following three aspects.First of all,the agricultural land management rights in rem,confirmed in the form of property rights,distribution,transfer and protection,and enable to guarantee the operation of the farm operators expectations,to ensure the implementation of farmland management guarantee financing,to prevent non-agriculturalization of farmland of non-staple.Besides,in accordance with the law and social reality really promote the modernization of agricultural management requirements.Secondly,the ownership of farmland can provide theoretical support for the reform of collectively-owned land system,the improvement of China's real right system and the scientific construction of real right system.Thirdly,the property right make independence and institutionalization of farmland management rights come true,which is more conducive to the improvement and improvement of China's farmland protection system,the consolidation and improvement of China's collective ownership of farmland system and the comprehensive maintenance and guarantee of the interests of "agriculture,rural areas and farmers".The key to the legitimacy of the land management right lies in its theoretical integration and institutional coordination,which is incompatible with the principle of property right,the legal system of real right,the theory of real right structure and the logic of rights generation.According to the article,if the legislation emphasis on farmland collective ownership,and under the premise of the right to the contracted management of land capitalization stock right,if the agricultural land management rights derived directly from the collective rural land ownership,the agricultural land management rights in rem isn't against a thing right principle and violation of the real right legal system,and fully conformed to the theory of property rights structure and power generation logic.Therefore,to further clarify the collective ownership of farmland and implement the shareholding of farmland contract management right and directly derive farmland management right from collective ownership of farmland and the system construction logic can completely resolve the problems existing in the traditional theory.The feasibility of the conversion of land management right is mainly reflected in whether it may endanger the protection of farmland red line.Is it possible to violate the principle of public ownership of land? Will it harm to the vital interests of agriculture,rural areas and farmers? The research shows that the registration system and the real right system of the farmland management right after the conversion of thereal right can be more helpful to keep the red line of farmland.The equity of contracted management right and the further consolidation of farmland ownership will be more conducive to the consolidation of rural collective land ownership and the non-violation of the principle of public ownership of land.The specific system design in the conversion of farmland management right,such as the corresponding transfer system,registration system,management system and benefit distribution system.It will be more conducive to the effective protection of the interests of "agriculture,rural areas and farmers" and can completely eliminate all kinds of possible risks within the system scope of the conversion of management right.Through the systematic demonstration of the necessity,legitimacy and feasibility of the conversion of land management right,the author proposes that the land management right should be defined as usufructuary right at the legislative level and the term of the right should be at least 30 years.In terms of the acquisition and change of rights,the principle of distinguishing two kinds of farmland markets is adopted and the applicable rules are discussed by case.In the primary market where the land management right was originally acquired,the collective organization which is on behalf of the peasant collective transfers the right to the use of collectively owned land to the owner of the farmland management right by means of agreement,bidding and auction.Both parties enter into a written contract for the transfer of the right to the use of farmland and the land management right is established after registration by the relevant institutions.In the secondary market of the transfer of land management right,the transfer of land management right is subject to the registration and effective rules.the lease of land management right is subject to the relevant provisions of the contract law on real estate lease,and the mortgage of land management right is subject to the provisions of real estate mortgage.In short,under the premise of effectively consolidating the ownership of rural collective land and gradually expanding the rural collective economy,the rational system design will be more conducive to the practical protection of the interests of "agriculture,rural areas and farmers" and truly realize the rural revitalization strategy.