Research On The Legal Protection Of The Right Of Contractual Land Management

With the promulgation and implementation of the Law of Contractual Land Management, the relationship of contractual land management has now been confirmed in the form of law ,so that the right of contractual land management has been brought into the orbit of legalization systematically. The implementation of the Law of Contractual Land Management play a positive role in protecting the interests of farmers, stabilizing rural society and promoting the development of rural economy. But at the same time, we have also seen that large number of cases over land contracts still exist in judicial practice, and there is a growing trend. We can see that the right of contractual land management has been far from effective legal protection. It will be particularly important to study the issue of legal protection of the right of contractual land management from legal perspective.This paper, which is composed of ten chapters, can be divided into four parts. The first three chapters are theoretical analysis. The author first introduces the origin of the topic and its historic background, then reviews the basic situation and viewpoints of domestic and international of the right of contractual land managements, and then the author introduces the main contents, scope, methods, technical route ,innovation point and the question needed to be researched. On the basic of defining a few concept closely related with the right, the author analyzes the basic structure of the right of contractual land management including the right of land acquisition, subject, object, effectiveness, circulation and the elimination of legal and characteristics.In this paper, the author makes clear the linkages and distinctions of the right of contractual land managements and relative civil rights ,such as rural land ownership, collective land use right, land acquisition right ,right of permanent tenancy, members right and so on. Rural land ownership is the prerequisite and foundation of the right of contractual land managements. However, they have differences in the subject and content. The right of contractual land management is a stage in the process of the development of the collective land use right, which will not satisfied with the shackles of the collective land use right. There are more differences than linkages between the right of contractual land management and land acquisition right. The right of contractual land management perishes of itself with the eradication of the land. The right of contractual land management,regarding the right of permanent tenancy as its direction ,has now become an indispensable factor to the collective economic relations as members of the condition .Chapter IV, chapter V and chapter VI are the systematic analysis on the right of contractual land management and related elements as a whole. The author analyzes the legal environment which is faced by now and the gap between the real state and should-be level. Then the analysis points out the obstacles such as political, economic, cultural, natural factors from the angle of legislative, judicial, legal system and the awareness of the object. The discussion shows that an effective protection of the right of contractual land management depends on not only a good social environment, the rule of law, but also a powerful legal protection system.. At the same time, the violations to the right of contractual land management linked most closely with infringement and breach of contract. From the above points, the author discusses the elements constituting a general infringement and a breach of contract , particularly on the characteristics and the composition of the elements. The author explicitly pointed out the legal conflict between the relevant legal provisions and existing problems through the specific analysis of Rural Land Contract Law, Land Management Law, Property Rights Law and Criminal Law. Combining with judicial practice, the author classifies the legal responsibility of civil, administrative and criminal liability to the violation and breaching of rural land contract .Through the actual confirmation of infringement, breach of contract and the application of law, the author studies on how to improve the legal protection of the right of contractual land management.Chapter VII and chapter VIII are the empirical analysis on the legal protection of the right of contractual land management from the integrated and thematic (circulation) point. Through comprehensive case analysis, the author shows the low level of legal protection on the right of contractual land management. Then the article reveals the primary reasons for the growing up of transfer disputes are the low standard on regulation and the resumption of land. the article also reveals the features of transfer disputes are the higher rate of implementation of the plaintiff's claim and the "duality" of the execution result. At last, the author makes his policy recommendations on the integration of land acquisition and land contract system, the improvement of the transfer contract system ,etc.The last two chapters are mainly about standards analysis, policy implications and the planning system design on the basis of theoretical and empirical analysis. The author sorts out and sums up the current constitution, laws and regulations on the right of contractual land management from the start with the legislative process, basically forms a system framework on protecting the right of contractual land management. On the above basis, the author analyzes four mechanisms and their mutual relations on the rural land contracting disputes, which are consultation, mediation, arbitration and litigation. The author at last suggests to improve the mechanism to resolve these disputes, such as land contract management mechanisms, transfer mechanism, land compensation mechanism , sanctions mechanism of discipline violations and disputes settlement mechanism, so that we can strength the mechanisms of coordination, form an coherence legal security system, and realize the aim of providing a strong legal protection to the right of the right of contractual land management.At last, the author puts forwards policy recommendations on how to strength the legal protection of the right of contractual land managements ,points out a model on how to develop the system of contractual land managements from the should-be angle.