Study On The Collective Forest Rights Transaction System Under The Background Of The Construction Of Two Oriented Society In China

After the new round of the collective forest rights system reform, the collective forest land has been finely divided, the forest land has been seriously wasted and the forest ecosystem has been still fragile. To solve the problem of inefficient use of collective forest land and weak service function of forest ecosystem, we need further eliminate the limiting factors of collective forest development from the system level. The collective forest rights transaction system is an important approach to achieve the efficient allocation of the resources and also the objective requirement to practically protect and realize the farmers'interests. How to improve the system so that forest resources can realize its due economic, social and ecological values is a major issue put in front of the Party and policy makers, and also a major academic subject placed in front of scholars.In this paper, under the background of the construction of a resource-conserving and environment-friendly society,proceeding with the formulation of specific connotation of the transaction of the collective forest rights, and based on the investigation of the rationale of the transaction of the collective forest rights and the historical changes of the system, the study will analyze the existing problems and the system reason in the practice of the transaction of the collective forest rights in China accurately and comprehensively, Finally utilize a multi-disciplinary theory and methods with the reference of legislative experience of foreign forest rights system to innovate and design some specific system which will promote and regulate the transaction of the collective forest rights in China.The whole paper includes seven parts: introduction, conclusion and five chapters of texts.The first part introduces the purpose and significance,the research status,the research approach, the research methods and the innovation, etc. of this study. The second part introduces that the transaction of the collective forest rights is required of the times by the construction of Two Oriented Society. It firstly analyzes the background and the scientific connotation of Two Oriented Society, then analyzes the rationale and the basic connotation of the transaction of the collective forest rights and finally analyzes the relationship between the construction of Two Oriented Society and the system of the transaction of the collective forest rights. There comes some basic ideas: the construction of Two Oriented Society is the strategic choice made by the Party and the government under the double pressures that domestic resources environment conditions is not good and the international resources environment strategy is challenging. Its overall goal or ultimate goal is to realize the sustainable development of economy, society and environment. It will mainly develope Two Oriented Idea, innovate Two Oriented Technology and build Two Oriented System to achieve its goal; There are broad and narrow meanings of the transaction of the collective forest rights:the generalized collective forest right circulation refers to the ownership change of all collective forest resources, narrow sense of it is the behavior that the forest rights holder transfers his property right of forest resources to other citizens, corporations or organizations legally with the forest land ownership and its use being not changed. The legal attribute of the transaction of the collective forest rights is the move of forest resources property rights; Natural resources property right theory and environmental resources value theory provide a solid theoretical foundation for the system of the transaction of the collective forest rights;The construction of Two Oriented Society gives a motive support for the improvement of the system of the transaction of the collective forest rights, and A thorough system of the transaction of the collective forest rights is an important system guarantee of the construction of Two Oriented Society.The third part is about the comments on the current situation of the collective forest rights transaction system. This part firstly investigates the history of our collective forest rights transaction system, then clears up its current laws, regulations and policies, and finally analyzes its effect and problems in the practice. The main viewpoints include: policy promotion is the direct power to develop collective forest rights transaction system; Promoting and regulating of collective forest rights transaction is an objective requirement and an inevitable trend to advance the forestry productivity and improve the utilization ratio of forest land; Without an special national laws and regulations about the system, the low level law would limit the orderly proceeding of the collective forest rights transaction behavior; Many problems which need to be solved in the forest rights transaction are not involved in local legislation, and the differences between the rules and regulations in different areas easily cause the interregional conflict; Collective forest rights transaction takes effect and at the same time, it is facing a triple problem of Unwilling Transaction, Inconvenient Transaction and Unregulated Transaction;The lack of incentive, service and normative elements in the collective forest rights transaction system caused by the orientation deviation of legislation value, conflict of part of the legislation content ,incomplete legal regulation system and defect of transaction supervision system is the system reason of the trouble.The fourth part is about the value orientation of the collective forest rights transaction system. This part, on the base of discussing the law value and general theory of this system , analyzes the value meaning,value relations and value attribute of the collective forest rights transaction system. And then ponders over the construction of the value system of the collective forest rights transaction. The main points are: the value of collective forest rights transaction system is the presented positive significance or effect of the system in the adjustment of the legal relationship of collective forest rights transaction; As a value subject of the system, one is a specific person, and also a person in abstract sense.It does not indicate the individual, but all the human beings including the contemporary people and future generations; The value object of collective forest rights transaction system is the system itself, namely, the laws and regulations and other normative documents of the regularization of the collective forest rights transaction behavior; The relationship between subject and object happened between people and collective forest rights transaction system is the conditions of the producing of the system value; the unity of subjectivity and objectivity; purposiveness and instrumentality, sociality and naturality is the essential attribute of the value of collective forest rights transaction system. With the consideration of targeted value, instrumental value and foundational value, the pursuit of the value of collective forest rights transaction system should be a completed system with the ecological harmony ,ecological efficiency and ecological security included.The fifth part is the legislative mode of collective forest rights transaction system. This part discusses the general theory of legislative mode, mainly analyzes the relation and the difference between the Administrative Legislation(A.L.) and Promotive Legislation(P.L.), and points out the legislation mode of collective forest rights transaction system should achieve the transfer from A.L. to P.L.. The main points are: Legislative mode is to deal with the problems about the national legislation approach. It is historical, evolutive and optional; In compliance with different standard, legislative mode can be classified into different types, following standard of the purpose of legislation, it has A.L. and P.L.; Compared with the traditional A.L., P.L. is a new type of legislation which is different from A.L. but complements and supports A.L. mutually. It aims to provide the system guarantee to promote the development of some businesses or the formation of some social order; The legislation in our current collective forest rights transaction system has typical characteristics of A.L.mode; the system design of A.L. has many restrictions on the forest rights transaction which largely causes the incomplete collective forest right power, hinders the smooth transaction of collective forest rights,and also easily causes the disconnection between legislation and law and the loss of the judicial authority; Studying the foreign experience of legislative of forest rights transaction, our country's legislation requires to reconstruct the relations of rights and obligation between government and society, and actively promotes the transition from A.L. to P.L..The sixth part talks about the institutional design of promoting and regulating the collective forest rights transaction. This part with three sections discusses the premise, the basic system and supporting system of the collective forest rights transaction. In allusion to some forest land ownership problems that many subjects scramble for the collective forest land ownership to exercise the right as the representative identity, the relations of various rights in land use of a piece of collective forestland are not clear and the use right of the collective forest land and executive power conflict, the special legislation needs to be formulated to enhance the legislation scientificity of the ownership of collective forestland, clear the ownership system, ensure the multi-function use of forestland resource, clarify the ecological property rights, and reach the harmony of the forestland economy and the ecological property right. In allusion to the nonstandard problem in reality of the collective forest rights transaction, we need to further confirm the collective forest rights transaction subject, improve the collective forest rights transaction way, expand the collective forest rights transaction range, and regulate the collective forest rights transaction program; It is a systematic project to promote and regulate the collective forest rights transaction required the support of many auxiliary system. And among these auxiliary system, the forestland protection and utilization planning system, the forest rights transaction price system and the rural social security system need to be centred on and consummated.The conclution with the title of The Realistic Predicament and System Perfection of the Collective Forest Rights Transaction in China summerizes the main point of view in this paper.