The characterization of land management rights is the key to the separation of three rights

In accordance with the spirit of the Central Document No. 1, the National People's Congress is now urgently amending the Rural Land Contracting Law. This amendment mainly targets a series of major policies and guidelines made by the central government for the stability and improvement of land contracting relations.

The following issues are mainly considered: One is the separation of three rights - land ownership, farmers' contracting rights and land management rights. There is no problem in granting legal status to the three rights, and there is no problem with land ownership and farmers' contracting rights either. The key is how to characterize land management rights. At present, opinions vary. Some believe it is a creditor's right, while others believe it is a real right. The reason for creditor's right is that land management rights arise from a lease contract relationship. Without a lease contract, without a contractual relationship, there is no such creditor's right relationship. Those who believe it is a real right derive it from the civil law theory of the continental law system - land management contracting rights, state-owned land management rights. A third understanding is that some authoritative experts say that whether it is a real right or a creditor's right should be judged according to the length of the contracting period. A short transfer period means creditor's right, and a long transfer period means real right. The law must clarify how to characterize it. In addition, there is now an international trend toward managing creditor's rights as real rights. This is the first thing that needs to be clarified.

Second, the issue of granting mortgage guarantee financing for land contracting and management rights. The current problem is that if land management rights are defined as creditor's rights, they cannot be mortgaged; they can only be pledged or guaranteed.

Third, the issue of the specific form for implementing the long-term unchanged nature of land contracting relations. Should the “long-term unchanged” nature of land contracting relations have a time limit? At the beginning of the research, there were two views. One held that a time limit should be set, and the other held that no time limit should be set. Civil law experts in particular believe that land contracting rights are usufructuary rights, which are a kind of time-limited real right. Japanese tenant rights are also 55 years, and the longest tenant right in Chinese civil law is also 50 years. How long the time limit should be can be discussed, but saying there should be no time limit is untenable.

Fourth, there is another important issue. Whether farmers should return contracted land after settling in cities and towns. The problem here is that policy documents and laws are inconsistent. The original Land Contracting Law stipulated that after farming households settle in small towns, their collective land may not be returned, but after entering a city divided into districts, the original contracted land must be returned. However, the State Council document on household registration system reform stipulates that the cancellation of farmers' three rights is taken as a condition - contracted land must be returned, homestead land must be returned, and collective contracting and management must be withdrawn. Only after withdrawal can one settle in a city or town. This cannot be taken as a condition. Therefore, laws and policies need to be connected, and two different opinions need to be reconciled. Another opinion holds that completely not taking back contracted land is also problematic. People are changing, so how can land remain forever unchanged? This opinion advocates conditional recovery. For example, if farmers have already settled in cities and towns, have housing and a stable source of income, are fully incorporated into the social security system for urban employees or urban residents, and have already lost their qualification for collective economic industry, then during the contracting period they should be encouraged to return the land without compensation. This is voluntary. If you do not want to return it without compensation, you can exit with compensation, with some compensation for your investment - voluntary return and compensated subsidy.