The Nature of Land Management Right in "Separation of Three Rights"

Conforming to the wishes of farmers to retain the right to contract and transfer the right of management, it is a great innovation of the farmland system of our country to realize the separation and parallelism of the right of contract and the right of management. This year's Central Committee document No. 1 proposes to define the right relationship among collective ownership of rural land, farmers' right to contract, and land management right, which requires first to define the nature and power of the respective rights of the three rights. as a newly created independent form of rights, land management rights need to be defined in a timely manner.

The right of land management is a right independent of the right of contract only in the case of circulation.

Generally speaking, the right of contracted management of land means that contracted farmers, as members of collective economic organizations, enjoy the rights of possession, use, income and transfer of contracted land. He can engage in agricultural production and operation on his own land, or he can transfer it to a third party to engage in agricultural production and operation.

In the absence of circulation, the contracted peasant household enjoys the right to "combine the land contract right with the land management right". At this time, as a member of the collective economic organization, he enjoys the contract right embodied in the "membership right". As the actual operator of the contracted land, he enjoys the right of land possession, use and so on. From a legal point of view, the land rights of contracted farmers mainly include the above two rights, and "land contractual management rights" better cover them, which can be understood as the "coupling" of contracting rights and management rights. In other words, in the case of contracted farmers, these rights belong to themselves, so as long as they do not involve the right of contracting farmers to "dispose" their own farmland, there is no need to make a particularly clear distinction between the right of contracting and the right of management.

In the case of circulation (mainly refers to rental), the third-party operator shall, within a certain period of time, "borrow" the contractor's right to occupy and use the land to engage in agricultural production and operation by paying rent to the original contractor within a certain period of time, and get the corresponding income. Legally speaking, this is actually a kind of land debt creditor relationship between the outflow party and the third-party operator through the lease contract, which takes land use as the main subject matter, and does not involve the separation of the land contractual management right itself. However, in order to better define and maintain the respective farmland rights of contracted farmers and third-party operators, and to facilitate the understanding and acceptance of farmers, the contracted land management rights of contracted farmers can be divided into land contracting rights and land management rights, and the contracted farmers can "lease" (not completely, completely transfer or transfer) the land management rights to third-party operators, who obtain corresponding rights. The former itself retains the right to contract.

To a certain extent, from the first day of agricultural land transfer, the inflow party (third-party operator) began to gestate and mature its own rights, and in fact became a form of rights that needed independence, because more and more third-party operators began to claim their own land rights and hoped to get policy support and legal protection.

The nature of land management right is a creditor's right, not a real right.

So, is the nature of land management right a creditor's right or a real right? The following discrimination is made from five aspects: resistance, duration, transferability, content of rights and consideration.

First, in terms of resistance, the real right is the exclusive domination of the thing, which can resist the third party, and the creditor's right is the right of claim to someone, not against the third party. The land management right is the legal relationship between the outflow party and the inflow party, which is generally not against the third party, the land management right is the legal relationship between the outflow party and the inflow party through the form of contract.

Second, in the period of existence, the real right is based on the principle of long-term existence, while the creditor's right contract depends on the consent of the parties, which can be one year, five years, ten years, or even longer. From the perspective of local land management rights transfer contracts, there are three years, ten years, and to the end of the second round of contracting, which mainly depends on the agreement of both parties.

Third, in terms of transferability, the real right is based on the principle of transferability, and the lease creditor's right cannot be transferred without the consent of the lessor. At present, the re-transfer of land management rights needs the written consent of the contracting party and contracted farmers, and can not be transferred at will.

Fourth, in terms of the content of the right, the owner of the real right "has" the power of possession, use and income, while the creditor only "borrows" the relevant power of the owner of the property within a certain period of time (the power of possession and use of the real right still belongs to the owner of the real right). The specific content depends on the contract. In other words, the original use of real right, income and other powers are not really transferred and given to the lessee. Through the land management right transfer contract, the inflow party only "borrows" the land possession, use and other rights of the outflow party, and returns these rights to the outflow party after the expiration of the contract period, and does not obtain the real right power.

Fifth, in terms of consideration, the real right does not take consideration as the element, while the lease claim takes consideration as the natural element. While obtaining the land management right, the importer needs to pay a considerable amount of land rent for consideration.

Based on the analysis, we believe that the nature of land management right is creditor's right, not real right. This accords with the doctrine of "one thing, one right" of real right, that is, only one real right of the same content can be established on one thing, and when the land contractual management right is already a usufruct, the land management right can no longer be established as a real right, which is feasible in legislation. However, with the attention to the protection of actual tillers in the future, the real right attribute of land management right can be strengthened, but the "background" and essence of its creditor's rights will not change.

The real right of land management right is a common practice in many countries, but it should not be emphasized too early and too quickly.

From the international experience, it is a common practice in many countries to transform the lease right similar to the land management right into the real right of creditor's right. Generally speaking, because of the dominant position of ownership, the status of the lessee (that is, the lease right) appears to be relatively fragile. considering that the fragility of the lease right may hinder the progress of social production and the stability of life, the legislation of various countries are also working hard to strengthen the status of the lessee and promote the real right of the lease right. In particular, the emergency countermeasures made by various countries during the second World War promoted this tendency of property rights.

Although the post-war economic situation tends to be stable and countries gradually abolish the emergency countermeasure legislation, the real right of lease right, as the core part of these legislation, has taken root in the civil law of various countries as a permanent system. It can be said that it is a common tendency of all countries to make the power of the lessee in the debt relationship generated by the contract have the effect of real right, especially, there are almost no exceptions to endow the lease right with resistance and restrain the lessor's right to terminate freely. Germany has made special provisions on the "beneficial lease of agricultural land" and strives to strengthen the status of the lessee. Japan, on the other hand, has formulated special laws such as the Land Lease Law and the Rental Housing Law a long time ago, which treats the right of lease (the right of lease and the right of lease) as the real right. In this way, the rights of both parties, especially the lessee, have been effectively protected.

At present, our country begins to appear the voice of the real right transformation of the land management right, it should be said that this has certain rationality, because it is beneficial to the stability of the land management right, as well as the confidence and enthusiasm to the agricultural production investment. In the long run, the real right of land management right is also an inevitable trend. However, it should be paid special attention that an important premise of the real right of lease right mentioned above is that ownership is in an absolutely dominant and strong position. If the ownership (contract right) of the lessor is not in an absolutely dominant and strong position, then giving the lessee the lease right (management right) with the characteristics of real right will easily challenge and infringe upon the former.

From the perspective of practice in our country, such as the registration and issuance of land contractual management rights, standardizing the transfer of land management rights and other work is still in progress, farmers' contractual (management) rights have not been fully and effectively protected, is the priority protection object. In the case that it has not been done and put in place, it is not appropriate to emphasize the real right characteristics of land management right too early and too quickly. Generally speaking, for quite a long time in the future, the nature of land management rights in China should be defined as creditor's rights. The time for the transformation of land management rights into property rights has not yet come, it must be carried out steadily and orderly, and there must be enough historical patience. Of course, this does not mean that the right to land management is not protected. In the next step, with the attention to the protection of the actual tillers, we should focus on controlling the excessive rise of the rent of the land management right, truly tilting the new agricultural subsidies to the new agricultural main body, and stabilizing the economic expectations of the actual tillers. So that they can obtain reasonable income from agricultural production and operation.

In the final analysis, the definition of the nature of land management right is to gradually find a right "balance point" between the contract right and the management right in the future, so that their respective rights and obligations are clear, and the well water does not invade the river water. It must be clearly recognized that excessive protection of either party will make the balance of rights of the two "out of balance", thus affecting the psychological expectation and stability of the other party. In particular, the over-protection of the lessee will bring the lessor a sense of psychological insecurity that "the leased land is difficult to recover", thus unwilling to lease the transferred land. This phenomenon has been particularly prominent in Japan, which is worthy of our summary and reference.