The unbearable weight of agricultural land in China

The unbearable weight of agricultural land in China: both security and economy are wanted, but the result is not available.

In reality, the circulation of rural land is not smooth for many reasons, but we think that an important factor restricting the circulation of rural land is that rural land carries both security function and economic function, and these two functions are difficult to be compatible, resulting in the coexistence of low-level rural security and low economic efficiency, and agricultural modernization has been seriously affected.

Although the property Law turns the real right of rural land into real right, this kind of real right is subject to many restrictions, such as the ownership of rural land can not be transferred and bought and sold, and the right of contracted management of land can be transferred but cannot be mortgaged and financed. The reason for this situation, we believe that the existing provisions of the property Law is a result of compromise. On the one hand, considering the lack of social security for rural residents, on the other hand, they want to give full play to the economic efficiency function of land contractual management rights.

However, if a job has more than two functions, and these functions are not compatible with each other, then the result must be inefficient, and any one of the functions can not be brought into full play.

The security function of rural land is difficult to be compatible with the economic function, mainly in the following six aspects.

The contradiction between stabilizing the land contract period and constantly adjusting the land contract period

The security function of land requires the continuous adjustment of land contract period, while the economic function of land requires the stability of land contract period. The security function of land is realized by the qualification right of members, that is, all members of the collective are eligible to enjoy the protection brought by land, which is equal, regardless of men and women, old and young, health and non-health. Once you lose your collective membership, such as transferring your household registration to another place or dying, you can no longer enjoy the protection brought by the land, nor can you inherit and transfer it. It is based on the requirements of this fair guarantee that the Rural Land contract Law stipulates that "everyone has a share" and "members are equal". Therefore, the right to contracted management of land must be timely adjusted according to the changes of members.

However, as far as the function of economic efficiency is concerned, the right to contracted management of land must be stable in order to stimulate operators' long-term investment enthusiasm and maximize long-term farming income. If the right to contracted management of land is often adjusted, it will reduce the level of investment in land based on agricultural production and encourage short-term sexual behavior.

Obviously, "everyone's share" and "equality of members" in the Rural Land contract Law contradict each other, because the former requires continuous adjustment of the land contract period, while the latter requires a stable land contract period.

The contradiction between Fairness orientation and efficiency orientation of Rural Land

The security function of land requires "everyone's share" and "equality of members", which aims to meet the basic survival needs of collective members, and its value orientation is social equity; however, the economic function of land requires "increasing people without increasing land, reducing people without reducing land". Only in this way can we maximize the income of land contractual management rights, in order to meet the development needs of collective members, and its value orientation is economic efficiency. "increasing people but not increasing land" means that the new members do not get the due right to contracted management of land and do not get due protection; while "reducing people but not reducing land" means that some people have gained more than their own share of contracted management of land, and "increasing people without increasing land, reducing people without reducing land" contradicts the security function of land.

Here we can see that there is a contradiction between the security function of land and the economic function of land, and the causes of the contradiction lie in the different value orientations of the two. In order to meet the security function of land, it is difficult to take into account the economic efficiency function of land, and vice versa. Under the condition that there is no universal social security system in rural areas, it is an urgent problem for rural land to meet not only the survival needs of members, but also the development needs of members.

The contradiction between the fragmentation of land and moderate scale operation

At present and for quite a long time in the future, China's rural population is growing continuously, and the land security function of "everyone's share" and "equality of members" will inevitably lead to the fragmentation of land. However, with the progress of agricultural science and technology and the popularization of agricultural mechanization, moderate large-scale operation of agriculture is the inevitable requirement of historical development.

In fact, the contradiction between the fragmentation of land and the moderate scale operation of land is the contradiction between the security function of land and the economic function of land. Institutional innovation must be carried out to resolve this contradiction. The main point of innovation is that in order to develop modern social security system in rural areas, we can not only rely on land to solve the growing strong demand for social security of farmers. The social security system without the participation of the broad masses of farmers is imperfect and unfair.

The contradiction between free use and paid use of land

In order to meet the land security function of "everyone's share" and "equality of members", it is necessary to obtain the land contractual management right free, while the economic function of land requires the paid acquisition of land. According to Coase's theorem, land should be contracted and managed by the people who use it most efficiently. Under the principle of paid use, the highest bidder is usually the one with the highest efficiency, while the equal distribution of land contractual management rights can not reflect the efficiency principle.

At present, the contracted management right of rural land is obtained free of charge, which reflects the security function of land and implements the principle of giving priority to fairness. However, the property Law stipulates that the contracted management right of rural collective land is a usufruct, which means that the use of land should implement the principle of giving priority to efficiency. The contradiction between the principle of fairness priority and efficiency priority is very obvious.

The contradiction between the restriction and free circulation of land

The purpose of the security function of land is to provide a reliable source of survival for the members of the collective, so only the members of the collective can enjoy the right of contracted management of land, and non-members of the collective shall not enjoy it. This means that the right to contracted management of land is transferred within the scope of the members of the collective at most, and if some members of the collective lose the ability to contract and manage the land, they can only ask others to do it on their behalf, and the person who does it must usually be a member of the collective, so as to facilitate the supervision and management of the collective organization.

On the other hand, the economic function of land requires that the land has the complete characteristics of real right, and it can circulate freely according to the will of the subject of real right, so that the party who flows out of the land can obtain higher circulation income. It can also make the party who flows into the land obtain the right to use the land according to efficiency, so as to achieve a win-win situation.

In the fifth section of the second chapter, the Rural Land contract Law stipulates that the right to contracted management of land can be transferred in accordance with the law, and its purpose is to promote the efficiency of land transfer. however, Article 37 of the law also says that "considering that the vast majority of rural farmers in our country still have to live on contracted land for a long time, they can not lose the land they rely on for survival because of random transfer." therefore, various restrictions have been set on land circulation. Contradictory legislative provisions such as the Rural Land contract Law can also be seen everywhere in the property Law and other agriculture-related laws.

The contradiction between land as a means of production and land as property

As a means of production, land aims to provide production products to meet the needs of its own survival and development. As property, land is more widely used, not only as a means of production, but also for transactions, the key lies in which way can bring higher benefits to the main body of property.

If only as a means of production, then usually can not be traded freely, can not be used for mortgage, because the means of production mainly meet the basic survival needs of its owners, with security function. As property, it usually can not restrict its free circulation or transaction, whether it is civil law or common law, except for a few special property, general property can be traded freely and can also be mortgaged and financed.

Article 128 of the property Law stipulates that the right to contracted management of land can be transferred, but Article 184 stipulates that the right to contracted management of land shall not be mortgaged. The Mortgage Law also stipulates that the right to contracted management of land shall not be mortgaged. The main reason is that the legislators are worried that when the mortgage is implemented, the contractor will lose the right to contract and manage the land, thus losing the security of life and causing social instability.

In fact, before the promulgation of the Rural Land contract Law and the property Law, China's land was treated as a means of production, mainly to meet the basic living and survival needs of rural residents. After the promulgation of the property Law, land is not only regarded as the means of production but also has the characteristics of property, but this property is subject to many restrictions, reflecting a kind of eclectic thought.

As a result, it can neither play a good role in security, nor improve the efficiency of land use. Therefore, it can be considered that the current "Rural Land contract Law" and "property Law" are transitional laws, which need to be further reformed and improved.