The connotation and Challenge of the Separation of three Rights of farmland

The General Office of the CPC Central Committee and the General Office of the State Council recently issued the opinions on improving the measures for the separation of contractual rights of rural land ownership (hereinafter referred to as "opinions"). The so-called "separation of rights" of rural land refers to the separation of farmers' household contractual management rights into contracting rights and management rights on the basis of the separation of the original collective land ownership and farmers' household contractual management rights. thus, the separation of ownership, contracting right and management right is carried out in parallel. In the following, the author makes a brief analysis of the effect of "separation of powers".

The connotation and positive effect of the "separation of rights" of agricultural land

According to the opinion, the connotation and power of the three rights of rural land are as follows:

The collective owner of land shall have the right to possess, use, benefit and dispose of the collective land in accordance with the law. In the process of improving the method of "separation of rights," it is necessary to fully safeguard the functions and powers of farmers' collective contracting, adjustment, supervision, and recovery of contracted land, and give full play to the advantages and roles of collective ownership of land.

The land contractor shall have the right to possess, use and benefit the contracted land in accordance with the law. In the process of improving the method of "separation of powers", it is necessary to fully safeguard the functions and powers of contracted farmers, such as the use, transfer, mortgage, withdrawal of contracted land, and so on. Contracted farmers have the right to occupy and use the contracted land, to build necessary agricultural production, ancillary and supporting facilities in accordance with the law, and to independently organize the production, operation and disposal of products and obtain profits. Have the right to transfer the contracted land and obtain income through transfer, swap, lease (subcontract), shareholding or other means, have the right to set a mortgage for the management right of the contracted land in accordance with the regulations, and voluntarily withdraw from the contracted land voluntarily and with compensation, those who have the conditions may obtain relevant subsidies for the protection of the contracted land.

The owner of the land management right shall have the right to possess, cultivate and obtain corresponding income from the transferred land within a certain period of time in accordance with the law. If the operator re-transfers the land management right or sets the mortgage in accordance with the rules and regulations, it shall be subject to the written consent of the contracted peasant household or its entrusted agent, and shall be filed with the peasant collective in writing.

The above-mentioned "separation of rights" conforms to the wishes of the broad masses of farmers, especially a large number of migrant farmers, to retain the right to contract and transfer land management rights, and the requirements of families who continue to work in agriculture and industrial and commercial capital going to the countryside to achieve appropriate scale operation of farmland, thus helping to speed up the pace of new urbanization and agricultural modernization, and is another major institutional innovation in rural reform after the household contract responsibility system.

The challenges and Countermeasures of the "Separation of Rights" of Agricultural Land

However, the separated contract right is recognized as a member right, and non-members of the collective economic organization may not contract the land of the collective, and the contract right that the peasant household has acquired can only be transferred within the collective economic organization and agreed by the peasant collective. The transfer of their land management rights must be put on record to the farmers in writing, and the operators're-transfer of the land management rights or the setting of mortgages in accordance with the rules and regulations must also be agreed in writing by the contracted farmers or their entrusted agents, and put on record to the farmers collectively, these provisions will restrict the circulation of rural land and the realization of farmers' land property rights and interests to a great extent, which is not conducive to the realization of moderate scale operation of agricultural land and the citizenization of migrant workers.

China's land is state-owned and collective ownership, land ownership is not allowed to buy and sell, the so-called land transfer or land market transactions (including rental, shareholding, transfer, transfer, mortgage, guarantee) are limited to land use rights. Since the urban state-owned land is allowed to be leased directly by foreign businessmen and foreigners, why is the contracting of rural collective land limited to the internal members of the collective economic organization? What's more, in a market where there is voluntary and fair competition in accordance with the law, this kind of transfer is paid for a period of time, which will not change the nature of the public ownership of land, but also enable all parties to win-win, achieve Pareto improvement, why not do it?

The opinion points out that in the process of perfecting the method of "separation of rights", it is necessary to fully safeguard the rights and powers of contracted farmers to use, transfer, mortgage and withdraw from contracted land, and improve the laws and regulations of "separation of rights". Summarize the practices and experiences that can be popularized and replicated, on this basis, improve the legal system, and speed up the revision and improvement of rural land contract law and other relevant laws. To study and improve the specific measures for the transfer of rural land management rights, mortgage loans and the withdrawal of rural land contract rights.

However, the relevant provisions of China's current Rural Land contract Law do not exclude members other than collective economic organizations from directly obtaining the contractual management right of rural collective land in accordance with the law. nor does it prohibit members of rural collective economic organizations from transferring contractual management rights to members outside collective economic organizations. The relevant provisions of the property Law also clearly stipulate that the right to contracted management of land belongs to the usufruct protected by it, and the usufruct owner has the right to possess, use and benefit the immovable or movable property owned by others in accordance with the law. it also stipulates that the rural collective has the right to contract the land to units or individuals outside the collective.

It should be said that the above legal provisions adhere to the "three bottom lines" of land reform, that is, "the nature of public ownership of land will not change, the red line of cultivated land will not be broken, and the interests of farmers will not be harmed." According to the requirements of the "opinion" and the spirit of comprehensively deepening the reform at the third Plenary session of the 18th CPC Central Committee, the implementation of the "separation of rights" of agricultural land and the series of reforms caused by it, there is no doubt that on the basis that the current Rural Land contract Law and the property Law have already given farmers the right of contracted management, we should further move forward and give farmers more complete usufruct of the right of contracted management. Promote the transfer of agricultural land property rights in a larger scope and to a greater extent, and accelerate the construction of a unified, competitive and orderly land market between urban and rural areas, so that the market can really play a decisive role in the allocation of land resources. and through the reform pilot to further improve the relevant laws, rather than retrogression from these original reasonable legal provisions.