Property Right Reconstruction of Agricultural Land Stabilizes Farmer's Contract Right

The vast majority of collectively-owned land is agricultural land, including cultivated land, woodland, grassland, aquaculture water surface, etc. According to the Second National Land Survey, the total area of rural collective land in China is 6.69 billion mu, of which 5.53 billion mu is agricultural land. This is the main part of rural collective assets and the key area to promote the reform of rural collective property rights system.

Changes in the Property Right Structure of Agricultural Land since the Reform

In the past 36 years of rural reform, the property right structure of agricultural land has undergone a great transformation from the high unity of ownership and use right to the separation of ownership and contract management right, and has bred the bud of separation of contract right and management right again.

From 1978, Xiaogang Village, Fengyang County, Anhui Province took the lead in implementing the contract responsibility system. By the end of 1983, 97.8% of the basic rural accounting units in China implemented the contract responsibility system. In a few short years, China established a contract responsibility system combining unified management with decentralized management, with household contract as the main form. Under this institutional arrangement, the collective ownership of agricultural land and the contracted management right of farmers began to separate, but the power of collective ownership was still very complete: one was the right to contract out, which restricted farmers through contracts and reserved a certain proportion of mobile land; the other was the right to production and management planning, which collectively issued plans for planting and purchasing grain and other bulk agricultural products to farmers; Third, unified management rights,"do well the things required by the members, such as mechanical farming, water conservancy, plant protection, epidemic prevention, seed production, breeding, etc."; fourth, income distribution rights, farmers must "keep enough collective" when disposing of agricultural products. At this time, farmers only obtain limited autonomy in production and operation, such as free control of labor time, free disposal of surplus agricultural products and production and operation income after "handing over to the state and keeping enough collectives".

Since 1984, the property right of agricultural land has been divided between collective ownership and farmer's contracted management right. The general trend is to shrink the former's power and expand the latter's power. The various powers of agricultural land are continuously transferred from collective to contractor. Outstanding performance in two aspects: first, from the contract period, in the continuous extension. Document No. 1 of the Central Committee in 1984 clearly stated that collectively-owned land could be contracted to farmers for a 15-year contract period; Document No. 11 of the Central Committee in 1993 stipulated that after the original farmland contract period expired, it would be extended for another 30 years without change; the Land Management Law revised and adopted in 1998 clarified farmers 'land use rights for 30 years; the Rural Land Contract Law, which came into effect on March 1, 2003, continued this provision; The Decision of the Third Plenary Session of the Seventeenth Central Committee of the Communist Party of China in 2008 proposed that the existing rural land contracting relationship should remain stable and unchanged for a long time. Relevant policies and regulations emphasize that farmers 'contracted land shall not be adjusted or recovered during the contract period, and farmers have obtained actual control and control rights during the contract period. Some experts believe that the contracting right is essentially the division of ownership. The more long-term and fixed the contract, the higher the degree of division of ownership by contracting right. Second, from the perspective of the nature of rights, the right to contracted management of land has undergone a major transformation from creditor's rights to usufructuary rights. Before the promulgation and implementation of the Rural Land Contract Law, the right to contracted management of land was established on the basis of the contract, and the rights and obligations of both parties were stipulated by the contract. It was a creditor's right in traditional civil law. According to the Rural Land Contract Law, the right to contracted management of land was a kind of domination and exclusive right granted by the state to members of collective economic organizations, and it had some characteristics of real right. The Property Law clearly defined the right to contracted management of rural land as a usufructuary right in traditional civil law. In the process of continuous division in the past 30 years, the land contract relationship has realized a major transformation from contract agreement to state empowerment, household contract management has realized a major transformation from production and management responsibility system reform to property rights system reform, land contract management rights have realized a major transformation from production and management autonomy to usufructuary rights and even "quasi-ownership", and the institutional framework for the separation of agricultural land ownership and contracted management rights has basically been finalized.

Land contract management right is a mixture of contract right and management right. Contract right belongs to membership right, only collective members are qualified to own it, which has obvious identity dependence, community closure and non-tradable. Management right belongs to property right, which can be attached to contract right or stripped off and allocated to capable people in a market-oriented way. It has obvious openness and tradability. Under the condition that population does not flow and land does not flow, such two different rights can be integrated and live together. However, the situation is changing, and the contracting subject and the operating subject are gradually separated. In 2013, the number of migrant workers nationwide reached 269 million, of whom 166 million were migrant workers, and more than 34 million of them went out with their families. Changes in employment structure and employment location create conditions for land circulation. According to the statistics of the Ministry of Agriculture, by the end of June 2014, the contracted land circulation area of farmers nationwide reached 380 million mu, accounting for 28.8% of the total contracted farmland area of households. With the increase of contracted farmers going out to work, the acceleration of land circulation and the expansion of land financing demand, the separation of contracting subject and management subject will further increase, and the continuous mixing of contracting right and management right will bring legal confusion and policy confusion.

In July 2013, General Secretary Xi Jinping pointed out during his visit to Hubei that to deepen rural reform and improve the basic rural management system, we should study the relationship among land ownership, contracting rights and management rights. The Decision of the Third Plenary Session of the 18th Central Committee of the Communist Party of China emphasizes that farmers should be given the right to mortgage and guarantee the possession, use, income, circulation and contracted management rights of contracted land, and farmers should be allowed to participate in the development of agricultural industrialization management with the contracted management rights. To implement this reform requirement, it is necessary to clarify whether the object of circulation, mortgage, guarantee and shareholding is contracted management right, contracted right or management right. To this end, the Central Rural Work Conference held at the end of 2013 clearly pointed out that it is another major innovation in China's rural reform to comply with farmers 'wishes to retain land contracting rights and transfer land management rights, divide farmers' land contracting management rights into contracting rights and management rights, and realize the separation and parallelism of contracting rights and management rights. Document No.1 of the Central Committee in 2014 further clearly pointed out that on the basis of implementing the collective ownership of rural land, farmers 'contracting rights should be stabilized, land management rights should be released, and the management rights of contracted land should be allowed to mortgage financing from financial institutions. This means that dividing the right of land contract management into contract right and management right, and implementing the "separation of ownership, contract right and management right" is the big logic of the evolution of farmland property right system. In fact, in order to find a balance between safeguarding the rights and interests of contractors and promoting the circulation of contracted land, some experts and grass-roots cadres put forward the formulation of "clear ownership, stable contracting rights and flexible management rights" as early as the early 1990s, and the concept of "circulation of contracted land use rights" was also consciously used in the No.18 Document of the Central Committee in 2001. In recent years, Jilin, Shandong, Yunnan and other places in order to avoid the guarantee law, property law on the land contract management right can not mortgage legal obstacles, from the land contract management right separated from the "state subsidy income right","management income right","use right","circulation right","circulation management right", and with them for bank pledge, mortgage loans.

The key to implementing the "separation of three rights" is to reasonably define the scope of agricultural land ownership, contract right and management right. Comprehensively weighing the basic national conditions, path dependence and reform costs, the next step should be to further clarify the power boundaries of the three in terms of possession, use, income and disposal according to the idea of "implementing collective ownership, stabilizing farmers 'contracting rights and protecting land management rights".

implement collective ownership

Over the past 36 years, collective ownership of agricultural land has been shrinking across the board. Under the background of carrying out and consolidating the household contract management system, preventing the grass-roots cadres from arbitrarily adjusting and forcibly transferring the contracted land of farmers, lightening the burden of farmers, and giving farmers "peace of mind", it is necessary to regard safeguarding farmers 'land contract management rights as the main policy orientation. However, some people hold different opinions on this policy orientation of continuously dividing agricultural land property rights to contracted households, believing that it is wrong to restrict collective economic organizations from adjusting and recovering contracted land for farmers and canceling land contract fees. These people worry that after the land contract relationship remains unchanged for a long time, the collective ownership of agricultural land may exist in name only. There are also some people who think that the property rights of agricultural land are not inclined enough to the contracted households, and that "permanent state-owned tenancy" should be implemented, with the state only having nominal ownership and farmers having permanent use rights; some even advocate the implementation of private ownership of farmers.

We believe that farmers 'ownership of complete land property rights, even private property rights, is not necessarily conducive to land circulation and expansion of business scale, and may even become an obstacle to land circulation and concentration. The situation in Japan, Korea and Taiwan Province of our country for more than 60 years is enough to prove this point. Even some Japanese scholars of agricultural economics believe that under the condition of collective ownership of land, China may be able to operate on a larger scale more smoothly than Japan, because collective ownership of land is more conducive to implementing the principle of land to the tiller and has more ways to concentrate the farmland of the peasants than to implement private ownership of land. The crux of the problem lies in that we should neither repeat the mistakes of collective ownership, unified management and centralized labor in the past, nor fall into the predicament of peasant households occupying but not using, idle but not renting, and barren but not allowing; we should not overdo the power of collective ownership, nor should we blindly falsify or dilute collective ownership. At present, the focus of implementing collective ownership should be to respect and implement the power of collective economic organizations in possession and disposal, give full play to their supervisory role in dealing with abandoned land, their leading role in leveling and improving land, their organizational role in building infrastructure such as farmland water conservancy, and their bridge role in promoting centralized land contiguous and moderate scale management.

The implementation of collective ownership requires attention to five points:

First, the stability of the subject of collective ownership of land should be maintained. Properly handle the problems left over from the process of confirming the collective ownership of land. According to the basic accounting units before the reform, the land ownership shall be confirmed to villagers 'groups or villagers' committees or farmers 'collectives within the scope of villages and towns. It is not advisable to disturb the boundaries of the original basic accounting units and prevent the leveling of land property rights among different collective owners.

The second is to determine the organizational form of the subject of collective ownership from the actual situation. Economically developed areas may generally establish village economic associations and group economic cooperatives as property rights representatives of collective land ownership. In economically underdeveloped areas, villagers 'committees can continue to perform the functions of collective economic organizations at village and group levels to help reduce collective burdens, but on the premise that the boundaries of land ownership are clear, which is similar to the current "village finance and township management".

Third, at this stage, it is not appropriate to embody ownership by expanding the adjustment of collective economic organizations and forcibly recovering the rights of farmers to contract land, nor by collecting land contract fees and participating in the distribution of land circulation rent. Otherwise, it is easy to infringe on farmers 'contract rights.

Fourthly, collective ownership can participate in the distribution of land compensation fees appropriately when the contracted land of farmers is expropriated according to law.

Fifth, we should re-recognize and treat the practice of some local collective economic organizations in exercising the right to dispose. For example,"anti-rent reverse package." In the previous "anti-rent and anti-contracting", village collectives generally implemented low import and high export, forcibly recovered the contracted land of farmers at a low price, and then contracted it to some farmers or industrial and commercial enterprises at a high price, from which the land circulation fee was withheld. In the current "anti-rent and reverse contracting" or "entrusted circulation", the village collective rents the land from the original contractor, and after sorting it out, it is subcontracted to a moderate scale operator according to a certain standard. Not only does the village collective not retain the land circulation fee, but the local government and village collective also give circulation rewards. Shanghai City Songjiang District to develop family farms, is the new situation of "anti-rent contract," in the protection of the rights and interests of contractors, promote grain production moderate scale management has achieved remarkable results.