Perfecting the conditions, Reform ideas and paths of the disposal Power of contracted Land

In 2013, in the report of the third Plenary session of the 18th CPC Central Committee, the decision of the CPC Central Committee on comprehensively deepening Reform proposed for the first time to give farmers the right to mortgage and guarantee the right of contracted management, and initiated the reform of improving the power to dispose of contracted land. In 2015, the No. 1 document of the Central Committee, "some opinions on strengthening Reform and Innovation and speeding up Agricultural Modernization", put forward "exploring the effective realization form of rural collective ownership", and improving the power of contracted land disposal is also the core issue of this exploration. However, under the basic framework of the separation of ownership, contracting right and management right of contracted land, there is still a lack of clear reform and design of the right subject, right object, scope of rights and interests and ways of realization of the power of disposal of contracted land, which will have an important impact on farmers' rights and interests and the organizational form of agricultural production. With the goal of improving the disposal power of contracted land, this paper discusses the conditions, ideas and paths of the reform, and analyzes the rationality and feasibility of the reform from the point of view of various stakeholders, and finally puts forward the guarantee conditions to promote the reform.

I. the connotation and practical significance of perfecting the power to dispose of contracted land

Improving the power of contracted land disposal is the key to deepening the reform of rural collective ownership and land system. Here, the power of disposal refers to the transferred rights and the mortgage and security rights based on the transferred rights. For a long time, because of institutional constraints and unclear boundaries of property rights, farmers lack the power to dispose of contracted land, and restrict the realization of farmers' property rights and the flow and optimal allocation of land resources.

The right to transfer, gift and other disposal of ownership is the right to dispose of the property owner as stipulated in the Civil Law and property Law. Therefore, the right to dispose of the contracted land with ownership as the object is owned by the collective. Due to the restriction of collective ownership, the ownership of contracted land can not be transferred, and the collective right to dispose of contracted land can not be implemented under the existing legal framework. Farmers have the right to contract and manage the contracted land, which is the usufruct set up by the contracting party (collective) on the contracted land. Article 120 of the property Law stipulates that "the usufruct has the right to possess, use and benefit the immovable or movable property owned by others in accordance with the law." there is no right of disposition, that is to say, the farmer has no right to dispose of the contracted land itself. What farmers can deal with is the right of contracted management. According to the provisions of the Rural Land contract Law, "the contractor has the right to use the contracted land, the income and the transfer of the contracted management right of the land in accordance with the law." in addition to leasing and subcontracting, the transfer of the contracted management right also includes transfer. Article 128 of the property Law also stipulates that "the holder of the land contractual management right has the right to transfer the land contractual management right by means of subcontract, exchange and transfer in accordance with the provisions of the Rural Land contract Law."

The relevant laws and regulations and central policies have changed from "transfer of contracted management rights" to "transfer of contracted land". Article 16, paragraph 1, of the Land contract Law stipulates that contractors "have the right to use, income and transfer the contracted land management rights in accordance with the law." the report of the third Plenary session of the 17th CPC Central Committee proposed to "improve the power of land contractual management rights." farmers' rights to the possession, use and income of contracted land shall be protected in accordance with the law. Allow farmers to transfer the right to contracted management of land in the form of subcontract, lease, exchange, transfer, share cooperation, etc. ". The report of the third Plenary session of the 18th CPC Central Committee and the document No. 1 of the CPC Central Committee in 2014 respectively proposed to "give farmers the right to mortgage, security right and security right to occupy, use, benefit, transfer and contract the contracted land." However, at present, it should still refer to the transfer of contracted management rights of contracted land, not the transfer of ownership, otherwise it will face two major institutional breakthroughs: one is the breakthrough in collective ownership from the transfer of collectively owned land, and the other is the breakthrough in the exercise of the right of disposition by farmers.

At present, the farmers' power to dispose of the contracted management right is not complete. First of all, the Rural Land contract Law stipulates that the transfer of contracted management rights by way of transfer shall be agreed by the contract issuer. Secondly, the transfer object is limited. According to Article 15 of Chapter II of the Land contract Law, only members of the collective economic organization are qualified for the so-called household contract management. The Rural Land contract Law stipulates that "with the consent of the contracting party, all or part of the contracted management rights of the land may be transferred to other farmers engaged in agricultural production and operation, and a new contractual relationship between the peasant household and the contracting party shall be established." the contractual relationship between the original contractor and the contracting party on the land shall be terminated, but when the transferee exceeds the scope of the collective members. What kind of contract relationship should be established between the new obligee and the owner of the contracted land, and what kind of legal attribute of the contract relationship is vague. Thirdly, the term of all forms of circulation, including transfer, cannot exceed the remaining period of the contract period. Because of the various restrictions on disposal, the mobility of the contracted management right is lower than the general property rights, and other powers based on the contractual management right disposal right can not be developed, such as mortgage, guarantee and so on.

From the third Plenary session of the 17th CPC Central Committee proposed that the contracted management right should remain unchanged for a long time to the confirmation of the rights of the pilot contracted land, and then to the third Plenary session of the 18th CPC Central Committee proposed to give farmers the power to mortgage and guarantee the contracted land, the basic direction of land system reform is to enhance farmers' property rights to the contracted land, and it is the due meaning of this direction to improve the disposal power of the contracted land. Through the reform, first of all, we can clarify the rights and interests of different subjects to the contracted land, and enhance the protection of farmers' rights and interests to the contracted land, especially the off-land farmers' rights and interests to the contracted land, which is conducive to the development of urbanization; secondly, it is beneficial to speed up the circulation and optimal allocation of contracted land and improve the efficiency of land use. Thirdly, it is conducive to the development of scale operation and the cultivation of the main body of modern agriculture, promote the construction of modern agriculture and ensure national food security.

II. Objectives and ideas of reform

(1) Reform objectives

To improve the power of contracted land disposal is to change the current property rights arrangement on the basis of collective ownership, which is not conducive to the realization and protection of farmers'(contractual management rights) rights and interests, but also to the improvement of cultivated land use efficiency and the current situation of modern agricultural construction. To improve the power of contracted land disposal is to find the intersection of possible institutional arrangements to achieve different goals, and the reform should meet the requirements of three aspects:

1. Let the right of contracted management become a complete property right. For the contracted management right, in order to become a complete property right, it must be able to be transferred through sale and purchase. On this basis, the financing means such as mortgage and guarantee can be developed, and the contracted management right can be changed from property to assets.

two。 The reform should help farmers to form stable and reasonable expectations of rights, so that farmers can rest assured to leave the land and their hometown to realize urbanization, which is the objective requirement of the continued development of industrialization and urbanization.

3. The reform is also conducive to the rational flow of contracted management rights, the development of agricultural scale operation and the stable operation of new agricultural subjects, avoid abandonment and extensive management, and improve the efficiency of cultivated land use. The problems such as the upside-down link between the market price of agricultural products and the CIF price of imports need to be solved by changing the mode of agricultural production and improving the efficiency of agricultural production. However, the serious problems of coveting the non-agricultural value, non-grain and non-agricultural conversion of agricultural land are common in the scale transfer, which can only be solved by reasonable property right arrangement and land use control.

(2) the basic ideas of reform

1. Improve the disposal power of contracted land under the framework of the separation of ownership, contracting right and management right. The separation of ownership and contractual management rights has greatly promoted the development of agriculture. With the advance of industrialization and urbanization, the separation of contractual management rights and actual agricultural operators is becoming more and more common. In order to regulate and protect the economic interests of different subjects, the separation of the right of contract and the right of management is also inevitable. On September 29, 2014, the Fifth meeting of the Central leading Group for comprehensively deepening Reform and the opinions on guiding the orderly transfer of contracted Management Rights of Rural Land to develop appropriate scale Management of Agriculture, jointly issued by the CPC Central Committee and the State Office on November 20, 2014, proposed to further deepen the reform of the rural land system and separate the ownership, contracting and management rights of rural collective land.

two。 The contract right and management right after division have independent value and value basis. To clarify the relationship between land-related interests and various property rights is the key to the realization of the reform goal. The value basis of the right of management is the income from the use of agricultural land. The value basis of the contract right has two aspects: one is the rental income of the transfer of the management right, and the other is the asset income generated in the case of land expropriation.

3. The right of contract and the right of management may have their own independent right holders. The right holders of the contract right and the management right can be different, and on the basis of the agricultural use of agricultural land, the contractor has no right to interfere with the production and operation of the management right.

4. The owner of the management right has the power of complete disposal, and the right of contract and the right of disposal of the right of management can be independent of each other. The complete management right disposal power means that the right holder can transfer or transfer the management right indefinitely, and the transferee is not limited to the members of the collective economic organization. In the case of indefinite and long-term circulation, the contractor may not take back the management right without reason or because of the responsibility of the non-franchisee. The power to dispose of the contract right should be established step by step on the basis of solidifying the contract right. First of all, it is necessary to ensure free transfer within the scope of the members of the collective economic organization, and when the conditions are ripe, the transferee of the transfer shall be liberalized to persons other than the members of the collective economic organization. Independent disposal power means that the obligee of the management right can independently determine the transfer of the management right (including short-term transfer, indefinite long-term transfer, transfer, etc.), and the new obligee of the transferred management right can also independently determine the transfer of the management right. At present, the circulation right of the obligee is not restricted by the owner, the contractor and the original owner. The transfer of the contract right is not affected by the owner or the owner of the management right, and at the same time, the transfer of the contract right does not affect the production and operation activities of the current owner of the management right. The independence of the disposal power means that if the transfer is carried out by means of transfer as stipulated in Article 37 of the Land contract Law, the transfer shall be carried out with the consent of the contract issuer, and if the transfer is transferred by way of transfer as stipulated in Article 11 of the measures for the Administration of the contracted Management right of Rural Land, an application for transfer shall be submitted to the contractor in advance and the transferee shall retransfer the land transferred by the contractor by subcontract or lease as stipulated in Article 13. Provisions such as "the consent of the original contractor shall be obtained" shall not apply to the long-term transfer and transfer of the right of management.