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Research On The Legal Attributes Of Land Contracting Rights Under The Separation Of The Three Rights Of Agricultural Land

Posted on:2020-10-04Degree:MasterType:Thesis
Country:ChinaCandidate:Y H ChenFull Text:PDF
GTID:2436330578972224Subject:Economic Law
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In recent years,policy documents of the "separation of three rights" in rural arable land have been promulgated continuously,and the reform practice in various places is also very lively.In policy,it refers to the separation of rural land ownership rights,contract rights,and management order to convert this policy dividend into legal expression,the Land Contract Law was continuously discussed and revised in 2018,and was formed at the end of this year.Unlike the draft,the amendment directly deletes the definition of land contract right in the draft(referring to the right of farmers to contract land).Only one part of the text expresses the right to contract for land:"After contract any land,the contractor shall have the conventional usufruct on the land for agricultural operations,and may conduct agricultural operations by himself or herself,or retain his or her land contract right or circulate his or her usufruct on the contracted land for agricultural operations by others." Compared with the ownership and land management rights,it is doubtful whether it can achieve the policy goal of "stabilizing land contractual rights".It can be seen from the process of discussion and revision that there was still much controversy about the land contract rights of all walks of life,and this highlights the significance of this article.the land contract right inherits the ownership and the land management right.The definition and nature of the land contract right are directly related to the legal structure of and ownership rights,contract rights,and management rights.From the extensive discussion in the academic circles,the discussion about what the land contract rights were mainly focuses on whether it is the original land contractual management right or whether it is a member right.The former determines that the land management right is the usufructuary right,and this view is controversial under the theory of real right of the civil law system:first,it cannot distinguish the object the rights,and secondly,it may cause the breakthrough of the doctrine of one thing,one right;in addition,the establishment of management right may causes confusion between Real Rights and Creditor's Rights,and it will result in the confusion of the original agricultural land circulation in the expression of legal texts.The interpretation of the membership rights of land contract rights does not have the above problems,and has certain rationality,which is also the main point of expression in this paper.This paper demonstrates that the land contract right is a member right from both historical and realistic perspectives.This paper demonstrates that land contract right is a membership right from both historical and realistic perspectives.From the historical evolution of the term "contracting" of rural land,it had realized the transition from obligation to right.Through this right,farmers apply to the collective to allocate land contractual management rights,because farmers cannot obtain land contractual management rights in the beginning.the areas generally carrying out the scale circulation of agricultural land need the collective acts as an intermediary role,because this will reduce transaction cost.But in the practice,the village committee has played this role and realized the circulation of agricultural land.When we assume the collective as a collective economic organization,it becomes that the peasants realize the external circulation through their collective economic organization.It is the peasants who jointly exercise the ownership of the collective land and establish the property rights on the collective land ownership.Peasants realize a collective vote by exercising the land contract right.In this way,the legal structure in the whole land transfer is actually the land contract right-collective ownership-land management right.Therefore,land contract right is not only the premise of obtaining land contractual management rights,but also one of membership rights,and it has become the expression of collective land ownership.Based on the above-mentioned nature,this paper hopes to have a more perfect legal structure for land contract right,rather than the thin content of the right of contracting land enjoyed by farmers.The most effective way to legally construct an unformed right is to place it in a legal relationship,which coincides with Hohfeld's view in the Basic Legal Concept.Interpretation of the different aspects of its rights is achieved by placing it in legal relationships,especially among farmers and collective relationships.In order to realize the intermediary role of collective economic organizations in the land scale transfer,the most effective way is the shareholding of land contract right,and this is beneficial to alleviating the contradiction between man and land caused by the consolidation of current land contractual management rights,but also helps to establish collective economic organizations and get rid of the possibility of excessive interference of rural committees in the circulation of agricultural land.In the process of shareholding,the three important issues we have to solve:first,the issue of the identification of collective membership,followed by the division of shares,and finally whether the number of shares is adjusted according to demographic changes.
Keywords/Search Tags:rural land ownership rights, contract rights, and management rights, Expectant Right, Membership Right, Stock and Share Holding
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