The Research On Legal Issues Of Re-transfer Of Land Operation Rights In China

Land is the foundation of people’s livelihood.The issues related to agriculture,rural areas,and farmers rooted in land have always been the focus of attention in China.Land circulation is an important part of current work related to agriculture,rural areas,and farmers.Especially after the "separation of rural land rights" policy was proposed,how to effectively regulate the circulation of land management rights has become a more urgent issue.As an important component of the land management rights transfer system,the re-transfer of land management rights has unique advantage in mobilizing land management rights and promoting large-scale agricultural land management,and its importance is self-evident.However,the current legislation does not provide a systematic regulation or establish a clear system for the re-circulation of land management rights.After reviewing relevant legal norms,it can be seen that there are less than 5 legal provisions that clearly stipulate the content of land management rights re-circulation.The current legislation more confuses the re-circulation of land management rights in the transfer of land management rights,making general provisions without distinction,which is insufficient in legislation.The imperfect legal norms have led to many problems in the application of land management right re-circulation:the scope of the subject of land management right re-circulation is unclear,the method of land management right re-circulation is unclear,the registration system for land management right re-circulation is not perfect,and the effect of restrictions on land management right re-circulation is unclear.Combining legislation with current practices in the re-circulation of land management rights,the legal issues in the re-circulation of land management rights can be properly addressed from the following aspects:firstly,the scope of the subject of the re-circulation of land management rights should be clarified,which can be divided into two categories:general subject and special subject.Among them,natural persons,new agricultural business entities,other legal persons,and unincorporated organizations can participate in the re-circulation of land management rights as general entities,while industrial and commercial capital with agricultural business capabilities or business qualifications can participate in the re-circulation through the identity of special entities.On this basis,strict qualification access restrictions should be imposed on industrial and commercial capital participating in the re-circulation.Secondly,the method of land management rights re-circulation should be determined,and it should be clear that the outflow party can re transfer the land management rights through typical methods such as leasing(subcontracting),acquiring shares,transferring,and mortgaging,as well as other forms of land management rights re-circulation formed in practice such as entrusted farming,anti leasing and land trust.Once again,the registration system for the re-circulation of land management rights should be improved,and transfer registration should be carried out for transfer,shareholding,and other re-circulation methods.The re-circulation of mortgage methods should be the first registration of mortgage establishment,and the re-circulation of rental(subcontracting)methods does not need to be registered.The re-circulation should also follow the principle of registration antagonism,and allow the right holder to freely decide whether to register the land management rights that are within the remaining period of existence.Finally,through judicial practice investigation,it is clear that the restrictive provisions on the re-circulation of land management rights under the two contracting methods are not the factor determining the effectiveness of the re-circulation,and violating these restrictive regulations does not affect the effectiveness of the re-circulation behavior.On this basis,in order to safeguard the legitimate rights and interests of the contractor,the contractor is granted conditional exercise of the right to terminate the transfer contract.At the same time,the contractor can also obtain equity relief by exercising the right to claim damages.