The core of "separation of powers" is to enliven the right of land management.

The Fifth Plenary session of the 18th CPC Central Committee proposed to stabilize the rural land contract relationship and improve the separation of land ownership, contracting rights and management rights. Recently, the State Office of the Central Committee of the people's Republic of China issued the opinions on improving the separation of management rights of rural land ownership and contracting rights, clearly pointing out that the "separation of rights" is another major institutional innovation in rural reform after the household contract responsibility system. Under the "separation of rights", ownership, contract right and management right not only have overall utility, but also have their own functions. Starting from the current reality, the focus of the implementation of the "separation of powers" is to invigorate the management right, and the core meaning is to clearly endow the management right with its due legal status and power.

The orientation of Land Management right under the structure of "Separation of three Rights"

Activating the right of management is the basic starting point for the implementation of the "separation of powers". From the perspective of the evolution of rural reform, at the beginning of reform and opening up, by giving the broad masses of farmers the right to contract and autonomy in management, it solved the most basic power problems that plagued farmers at that time, and greatly liberated the development of productive forces. the basic system of collective ownership of land and household contract management has also been established, which has become the cornerstone of the party's rural policy and laid the foundation for the reform to extend to more fields. At present, China's economic and social development has entered a new historical stage, and the situation facing the problems of agriculture, rural areas and farmers has also undergone profound changes. Through the implementation of the "separation of rights", from giving land contractual management rights to the vast number of farmers, to allowing more production and management subjects who are willing to engage in agriculture to own land management rights, and promoting the further deepening of rural reform.

Activating the right of management is an important goal of implementing the "separation of powers". The appropriate arrangement of property rights is to influence people's economic behavior by stabilizing expectations, so as to promote the economic activities of various subjects to be carried out within a controllable range. From the law of the evolution of the property right system, the modern property right system should adapt to the socialized large-scale production and modern market economy, and its main characteristics are clear ownership, complete power, smooth circulation and strict protection. The main purpose and achievement of "separation of rights" is to make the rational allocation of land resources and the flexible and efficient implementation of the right of management through the implementation of ownership, the stability of the right of contract and the demarcation of the right of management.

Activating the right of management is the practical basis for the implementation of "separation of powers". With the deepening of industrialization and urbanization, a large number of agricultural population has been transferred to cities and towns, the scale of the circulation of rural land management rights has been expanding, the separation of the main body of land contract rights from the main body of management rights has become more and more common, and all kinds of new business entities have developed vigorously. It has become an effective force in the development of modern agriculture. The implementation of "separation of rights" conforms to the practice at the grass-roots level, conforms to the respective needs of farmers' collectives, contracted farmers and business subjects, and clarifies the relationship with land ownership and contracting rights by reasonably defining the contents of their rights in land management. it has greatly promoted the formation of scale operation and the development of modern agriculture.

The relationship between activating the right of management, insisting on ownership and stabilizing the right to contract

It is difficult to properly deal with the relationship between "three rights" in the implementation of "separation of powers". The goal is to form a pattern of clear hierarchy, reasonable structure and equal protection.

The ownership nature of the management right. Since the "separation of rights" was put forward, some scholars have focused on the nature of land management right, and put forward different viewpoints such as "real right theory", "creditor's right theory" and "real right protection creditor's right theory" and so on. At present, it is more realistic to define the land management right as a creditor's right, and at the same time improve its power setting and strengthen the protection. Moreover, judging from the stage of China's economic and social development and the evolution of the land management system, the feasible and relatively safe plan does not necessarily have to determine the nature of ownership as the only form in the form of law, but from the problems and practical needs to solve the specific problems such as the fragmentation of land, small-scale operation restricting the development of modern agriculture, and the main body of management needs to stabilize business expectations, leaving flexible space for practice. It should also be noted that no matter how the nature of the management right is determined, its specific implementation can not affect the legitimate rights and interests of farmers' collectives and contracted farmers.

The relationship between management right and contract right. The right of contract derived from ownership under the "separation of two rights" has been widely recognized and understood by all walks of life. When the contracted farmers lease the land, part of the power is transferred, resulting in a relatively independent right of management, which brings about the problem of "three rights". "separation of rights" and "separation of rights" come down in one continuous line, rather than starting all over again, so the derived management right of contract right is logical and easy to accept. In reality, the specific content of the management right is produced by the contracted farmers and the management subject through consultation, and its power setting is open, rich, individual, infinitely changing and there are many possibilities. Therefore, the specific realization form of management right is not the only solid, land rental, land ownership, land trusteeship, co-cultivation, generation of seeds and so on all have their adaptability, and encourage active exploration through a variety of ways.

The relationship between management right and ownership. For the rural land that has been contracted by household, the ownership does not directly derive the right of management, but it will still restrict each other in the process of exercising the right. On the one hand, the exercise of ownership must not hinder the normal exercise of the right of management, for example, the collective of farmers cannot interfere with, obstruct or destroy the production and operation of the main body of management without reason; on the other hand, the exercise of the right of management should be subject to ownership, for example, the collective of farmers has the right to prevent the main body of management from damaging the land and agricultural resources, and the transfer or mortgage of the right of management should be put on record by the collective of farmers. From a realistic point of view, because some contracted farmers of the transferred land live and work outside the home all the year round, the farmers' collective has to bear the responsibilities of supervision, management, protection, coordination and so on.

The content of the right of management under the separation of powers

The starting point of the establishment of management rights is to equally protect the land management rights obtained by operators according to the transfer contract and protect their enthusiasm and stable expectations for the development of agricultural production on the premise of protecting collective ownership and farmers' contract rights in accordance with the law. Like land ownership and contract right, the connotation of management right is also very rich, the most fundamental is the right of farming and obtaining income, and the most important content is concentrated in the following aspects.

The first is the right to use the land for farming. The purpose of allowing and encouraging contracted farmers to transfer their land is to attract more capable and willing operators to develop agricultural production. Therefore, it should be made clear that no matter the contracted farmers who transfer the land management rights or the peasant collectives who lease the land by other means, shall not hinder the right of the operator to independently use the transferred land to engage in agricultural production and operation and obtain corresponding profits, in order to protect the enthusiasm of the main body of self-decision-making and independent management, respond flexibly to the changes of market risks and make rational decisions. It should be noted that operators should exercise these rights on the premise of abiding by the provisions of the circulation contract and the relevant provisions of national land management. At the same time, with the implementation of the national policy of supporting agriculture and benefiting farmers, business entities have also been included in the scope of coverage. We should not only give full play to the positive incentive role of financial support policies, but also guard against the phenomenon of deceiving national funds and infringing upon the interests of contracted farmers.

The second is the right of rational use of land. The contract Law stipulates that the lessee shall use the lease item in the agreed manner and may, with the consent of the lessor, improve or add something else to the lease item. Different from the traditional contracted farmers, the new operators who develop agricultural production through the transfer of land often need to improve the soil, build infrastructure, and even build ancillary facilities, in order to maximize the agricultural output effectiveness of land. Therefore, operators should be encouraged to make rational use of land resources and improve the efficiency of agricultural production. At the same time, in accordance with the principle of "who benefits, who compensates", guide both sides of the circulation to agree on relevant matters in the contract, and support the operators to obtain reasonable compensation after the expiration of the circulation. Within the scope of the policy, qualified operators should also be guided to undertake infrastructure construction projects and reasonably manage and protect the assets formed by the projects.

The third is the right to re-transfer the land management right or set the mortgage. The third Plenary session of the 18th CPC Central Committee made it clear for the first time that "farmers are entitled to mortgage, security rights and security rights in the possession, use, income, circulation and contracted management of contracted land". In 2014, the Central Committee No. 1 document further made it clear that "the management right of contracted land is allowed to mortgage financing from financial institutions." In practice, some operators need to re-transfer land in order to improve land output efficiency or labor productivity, so as to reduce transaction costs and give full play to economies of scale, whose purpose is to develop agricultural production. This is also one of the specific ways to "activate the right of management" and should be allowed. In 2015, the State Council issued the guidance on the pilot Project of Mortgage loan for the Management right of Rural contracted Land and Farmers' Housing property Rights (Guofa (2015) No. 45) to carry out the pilot project of mortgage loan for the management right of rural contracted land, and temporarily adjust and implement the stipulation that the collectively owned cultivated land use right shall not be mortgaged in the property Law and the guarantee Law. In 2016, the people's Bank of China, together with the Ministry of Agriculture and other relevant departments, issued the interim measures for the pilot Project of Mortgage loan for the right of Management of Rural contracted Land (Yinfa (2016) No. 79). Specific provisions have been made on the conditions and operating rules for contracted farmers and agricultural operators to apply for mortgage loans from banking financial institutions with the right to manage contracted land. Considering that the management right is derived from the contract right, and the re-circulation involves the interests of the contracted farmers, it must be agreed in writing by the contracted farmers and avoid the emergence of operators to hoard land and make a profit from it. It should be noted that in the disposal of collateral, we must adhere to the bottom line that 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 damaged.