The separation of the three rights of rural land is embarrassing: the nature of "management right" is not clear.

The central government once again mentioned the "separation of powers" and put it at a historical height, which means that the future land reform will be further promoted.

The Office of the CPC Central Committee and the Office of the State Council recently issued the opinions on improving the method of separating the right of Management of contract Rights of Rural Land ownership (hereinafter referred to as "opinions"). The separation of rural land ownership, contracting rights and management rights (hereinafter referred to as "three rights") is regarded as another major institutional innovation in rural reform after the household contract responsibility system.

Industry evaluation said that this is a very significant reform in the land system reform in recent years, but also a further confirmation of the previous land reform ideas, the next step will continue to amend land-related laws. Although the "separation of powers" is a more progressive institutional arrangement than in the past, it still needs to face up to the problems faced besides institutional innovation.

The separation of two land rights

Over the past 40 years of reform and opening up, China's rural areas have formed a basic management system of "a two-tier management system based on household contract management". And the "household contract responsibility system" or "household contract management" has been formally written into the Constitution. During this period, there were two separations of land rights.

Compared with the "big pot rice" of the people's commune, the labor distribution method of "paying enough for the country, leaving enough for the collective, and the rest is all our own" is obviously more attractive to farmers. The first separation of rights is to separate the right of contracted management of land from the collective ownership of land and realize "one right into two rights". Earlier, Ye Xingqing, director of the Rural Economic Research Department of the Development Research Center of the State Council, said in an exclusive interview with China Business Daily that the essential meaning of "Dabao Gan" is to adjust the income distribution relationship among farmers, collectives, and the state.

After the separation of the two rights, the malpractice has not been exposed because of the high unity between the main body of the contracted management of land and the actual operator. However, with the in-depth development of industrialization and urbanization, a large number of farmers are transferred, the main body of contractors and operators are constantly separated, and the innovation of agricultural management system is becoming more and more urgent. In order to better adapt to the objective trend of the continuous separation of the contractor and the management subject, it is necessary to change "two rights into three rights", that is, the separation of the second right, the separation of the land contract right and the management right. After obtaining the land management right, the third party only gets the right to engage in agricultural production and operation, and the contract right is still enjoyed by the members of the former collective economic organization. The object of mortgage, guarantee and circulation is only the right of management, not the right of contract.

Ye Xingqing said that he was more cautious about land transfer before. Raising the "separation of powers" to the level of national policy is actually a recognition of reality and an adaptation to the future trend.

The dislocation of agricultural subsidies

Since 1998, the first round of contracts in various localities have expired one after another, and the central government has decided to grant farmers a long-term and stable right to contract land, and decided to extend the original contract period for another 30 years on the basis of the original 15 years.

Ye Xingqing believes that the state has given a considerable part of the right of disposition to farmers, such as leasing, subcontracting, circulation, and so on. The third Plenary session of the 18th CPC Central Committee further gives farmers the power to mortgage and guarantee the right to contracted management of land. However, the right of inheritance and transaction has not been given to the farmers.

From this, we can see the obvious policy thread in the past 30 years, that is, the division of the property rights of agricultural land continues to tilt from the collective ownership to the contracted management rights of farmers. Farmers' land contract right has always been emphasized by the central policy, but too much emphasis will also cause a lot of negative effects. For example, the central government subsidizes "agriculture, rural areas and farmers" every year, and these subsidies are distributed to farmers who enjoy the right to contract land. In other words, those who contract land but do not farm land will get subsidies, but those who farm land will not. In the end, the modernization of China's agriculture needs to rely on operators, especially farmers who lease land.

Ye Xingqing said that this is not in line with the original intention of the subsidy policy. Subsidies must take into account the balance of interests of contractors and operators. Because subsidies are meant to subsidize advanced productive forces and to subsidize farmers' enthusiasm for growing grain.

According to Gui Hua, an associate researcher at the China Rural Governance Research Center of Huazhong University of Science and Technology, there has been a funny phenomenon in this series of reforms over the years, that is, "finally putting land in the hands of people who do not farm land." In an interview with China Business Daily, he said that the original intention of the land system reform was "who cultivates the land and owns the land." only in this way can we "make the best use of the land and make the best use of the land." however, urbanization has brought about the separation of people and land, and the absurd phenomenon that people who own land no longer farm land is widespread, resulting in land either abandoned or transferred to the hands of new agricultural operators. This runs counter to the original intention of the reform.

He said that the real farmers do not control the land resources, and the real farmers do not have the land rights. This is the dilemma faced by the innovation of agricultural management system.

The difficult problems faced by the separation of powers

The right of contract and the right of management, which are derived from the right of contractual management, are actually faced with legal and academic embarrassment. The property Law promulgated in 2007 defines the right of contracted management of land as usufruct, but it is not clear whether the separated right of management should be regarded as real right or creditor's right at the legal level.

Liao Hongle, a researcher at the Rural Economic Research Center of the Ministry of Agriculture, told this newspaper that this is a big problem, but there is no unified understanding in theory.

Gui Hua also mentioned that the unclear nature of management rights is a very big institutional obstacle. The contractual management right and the management right are essentially to solve the problem of the right to use. If the right of management is still the real right, then one thing, one right, one thing cannot have two real rights. At first, the purpose of the reform is to allocate resources to producers, but now producers only have a creditor's right, in fact, they are still faced with the problem of lack of enthusiasm for investment, and the creditor's rights are easy to default.

Gui Hua believes that this is a flaw in the system. Moreover, the "opinion" does not solve this problem and may be resolved in the relevant legal amendments in the future.

In addition, the "opinion" mentioned that the implementation of the "separation of powers" should respect the wishes of farmers, refrain from coercion and orders, and give farmers the right to choose across the board. But in practice, it varies greatly from place to place. Gui Hua said that the management right of land has changed from decentralized to centralized through the land property rights trading market and transferred to the hands of new agricultural operators, but the cost of doing so is very high.

He said, for example, in a village, there are always those who want to cultivate land and those who do not want to do so, and the land property rights trading market cannot unify everyone's wishes and transfer them to the hands of large households. As a result, there will be village branch secretary to do work for farmers, and even forced land transfer, otherwise let large households alone to negotiate with so many farmers, may be repeatedly created difficulties, resulting in high transaction costs. The land property rights trading market is supposed to be free, but in fact it is not necessarily so. Fan Ming, a professor at Henan University of Economics and Law, organized a team to investigate and found that small-scale and small-scale land transfers are generally realized by farmers through spontaneous negotiations, while large-scale and large-scale land transfers are generally intervened by local governments. at least the village committee coordinates.

On the question of high transaction costs, he said that according to the team's survey, the average contracted land for each household is 7 mu, divided into about 4 pieces. In order to realize the scale operation of land, on the one hand, large farmers have to negotiate lease agreements with many farmers, on the other hand, because the longest lease period is the land surplus contract period, so this kind of negotiation should be carried out frequently. The higher transaction cost naturally limits the large-scale operation of farmers. Large-scale leasing is generally intervened by the government or village committee, but it is difficult to avoid the compulsory transfer of land, which may damage the interests of farmers. It is even more difficult to consider that the lease contract may be torn up by one party at any time.

In addition, we also need to guard against the emergence of "new landlords". Fan Ming said that according to the design of the system, farmers who transfer land may have settled in cities and towns, but still enjoy the right to contract, while farmers who transfer land will pay rent or other benefits to these "landlords" every year. When this kind of tenancy relationship occurs, farmers are divided into two classes with opposing interests: farmers who cultivate land and the so-called "farmers" who do not farm land. The question is, how to evaluate this tenancy system, and whose interests should be protected?