On Chinese Rural Land Property Right System On Condition Of Marketization

Since the foundation of the people's Repulic of China, China's rural land property right system had experienced frequent modulation in the first thirty years and relatively stability in the later thiry years. Practice has proved that the highly concentrated property right structure model and rural land operation model hadn't realize the rapid development of China's country. But the endowment of rural land property to peasant has promoted the peasant's production enthusiasm continuously. At prenst, with the market-oriented reform advances, China's rural land system began to highlight ownership fuzzy, the representative of property right surmount its role, ownership enjoys superiority to contracted management right, and the contracted management right lacks stability. To overcome the above defects and shortcomings, it's necessary to clear and definite property right relationship, consolidate property right capability and optimize the configuration of property right. This paper studies the evolution of China's rural land system, and compares the rural land systems of tipical countries. Based on careful consideration of China's legal provisions concerning rural land property right and its practical operation, puts forward new ideas for the establishment of China's rural land property right system. This paper includes these following contents:Firstly, comparative analysis of rural land property right system. The paper on the one hand studies the evolution of China's rural land property right system, consider that 2000 years of rural land property right development history is beneficial to our present regulation:As a densely populated country, the central government should take measures to prevent the concentration of rural land, to prevent related interest groups seeking benefits from the peasant, and to ensure that the rural land be used for agricultural purpose. On the other hand, the paper compares the rural land property right system of typical countries, with China's entry into the world Trade Organization, agricultural trade across border restrictions leads to high competition between agricultural products, including China's agricultural products, such competition will of course leads to the competition of rural land property right system. So it's necessary for us take some advanced rural land property right system from other countries for reference. The author consider that radical privatization reformation and excessive scale operation are not proper way for our rural land property right reformation, the right choice should be based on the clearance of property right, the gradual elimination of rural land circulation restrictions and the promotion of moderate scale operation of agricultural production.Secondly, analysis of rural land ownership system. In the right system of our rural land property right, the problem of ownership of rural land is controversially argued theoretically, it also faces contradiction in practice. These problems mainly include the exact definition of ownership subject, the specific right belongs to the subject, the clear determination of representative of rural land ownership, the way to prevent entrust-agent problem and the superiority of ownership to contracted management right. The author consider that the collective land ownership belongs to peasant collectively, the subject and right itself of collective land ownership possesses abstraction. Any attemptation to individuation the ownership subject and to divide ownership right are against the character of collective ownership. The academic circule put forward two deffirent ways to the reformation of China's collective land ownership. The radical reformation denied that the land ownership should belong to collective ownership, they argue that the rural land should be nationalized or goes to privatization. The mild reformation didn't abandon the collective land ownership system, mainly includes "the property rights of owning land by farmers", "rural land be held by peasant", "country community legal person ownership" and "new style all owend" ect. The author analysis these theories respectively, consider that nationalization and privatization fundamentally changed the rural land ownership, didn't take path dependence into consideration, so its difficult to overcome social, economic and political risks. The mild reformation can hardly match the legal culture of ours,thus cannot eliminate the problems of the collective land ownership system.The author, however, after fully absorbing classical Maxism and deep study of rural land ownership of different countries, and take the practical operation of our rural land ownership system into consideration, put forward that the subject of collective land ownership be symbolized, the representative of ownership be explicated, the capabilities of ownership be transferred to contracted management right and the rights and liability to the maintenance of the object of ownership be strengthened, so as to realize the efficient and sustainable utilization of rural land.Thirdly, analysis to the legal right of contracted management right. Since the promulgation of the property law, the contracted management right to the legal right has been considered as an independent right. Which made the debate whether the contracted management is property right or creditor's right end. However, the contracted management right hasn't endowed sufficient rigid right by the property law. On the one hand, the contracted management right lacks stability and guarantee, on the other hand, the present rural land contract management law sets too many restrictions to the contracted management right, especially these restrictions to circulation, those who want to have their rural land be circulated should have stable work and income, such provisions obviously don't mactch that under the market economy, operators can hardy insure their work unchanged and their income stable. The law also entrust less rights to operators, it stipulates when the contracted management operators exit, they can only be repayed their investment which increased the productivity to the rural land, not the contracted management right itself, such provisions in fact denied the peasant right of exition. At present, the contracted management right has been explicated as "stable and permanent" at the 17th session of CPC central committee of the third plenary session on promoting the rural reform, development and some major issue decisions, which made contracted management right a perpetual right, this will of couse exert far-reaching influence to the legislation concerning the rural land contracted management right.Fourthly, analysis to the circulation of rural land contracted management right. Under the market economy conditions, with the transfer of emphasis of ownership to emphasis of utilization, it's necessary for the agricultural operators to have sufficient and full property right, so as to realize better allocation of resources and more prosperity through the circulation of rural land contracted management right. The author briefly review the evolution of China's rural land contracted management right circulation, difine the contents and essences of rural land contracted management right circulation, analysis the necessities, promotional and restrictional factors of circulation, deeply studies the rural land contracted management practices of different regions and different styles. The author consider mortage and inherite of rural land as circulation style has been successfully practiced, it still lacks guarantee for no provisions support such circulation styles. In addition, transfer as an important circulation style, the beneficiary right of the subject has not confirmed by law, which made the outflow of rural land contracted management right do not match the demand of inflow. To the perfectness and innovation of China's rural land contracted management right of circulation, the author on the one hand consider it is necessary to make the related laws of rural land contracted management right circulation self-consistent and collaborative, to reconsider the restrictive provisions to the circulation of rural land contracted management right, to realize the influence of "stable and permanent" policy to the circulation of rural land contracted management. On the other hand, it's necessary to establish the circulation market of rural land contracted management right, it specifically includes rural and registration, rural land valuation, rural land financial, supporting measures such as intermediary organizations for information collection and exchange. Last but not least important is the cooperation of government guide, limited intervention and market mechanism playing its full role.