Advancing Rural Land System Reform Requires Strengthening the Construction of the Collective Land Rights System

The Central Committee of the Communist Party of China adopted the “reform plan for rural land expropriation, market entry of collective operational construction land, and reform of the homestead system”, establishing the guiding ideology, basic principles, implementation path and safeguard measures for the reform. At present, the relevant departments are, in accordance with the requirements of the reform plan, carrying out the relevant pilot work at full speed. This work will inevitably have a far-reaching impact on further improving the socialist market economy system, promoting urban-rural integration and strengthening the construction of a new socialist countryside. In the author's view, to smoothly implement the above three reform tasks, it is necessary to further reform and improve the current rural collective land rights system, and ensure that the reform work conforms to the basic principles put forward by the Central Committee of “adhering to public ownership, firmly upholding the red line of cultivated land, and safeguarding farmers' interests”.

Why elevate the reform and improvement of the collective land rights system to such a height? Because the author has seen from many years of cases of farmers' petitions concerning land that whether land should be expropriated is not the core issue of concern to petitioning farmers, nor is the level of land expropriation compensation the focus of their grievances. The main problem that petitioning farmers care about is that the land has been expropriated, and the compensation standard is low, but even the very low compensation ultimately does not reach the hands of the farmers whose land was expropriated; it is either intercepted layer by layer by grassroots governments and organizations, or embezzled and squandered by the leaders of the village committee or villagers' group. Behind the problem, in the final analysis, is that farmers' land rights have not been effectively implemented. Collective ownership of land has to some extent become ownership by village cadres; farmers, as members of the collective, cannot exercise the collective rights they enjoy, nor can they enjoy the benefits they should enjoy as collective members. And local governments also lack “rights awareness”, lacking due respect for collective land ownership, use rights and other rights. They often replace or even infringe upon various collective land rights with the administrative power they possess. If these problems are not solved, first, the problems existing in past land expropriation work will still be impossible to solve; second, if collective operational construction land is allowed to circulate freely, village and group cadres, because their power is not constrained by the rights of collective members, may become even more intensified and unscrupulous in illegally selling collectively owned land, infringing upon the lawful rights and interests of collective members. As a result, collective land ownership will still in a disguised form become ownership by village cadres, farmers' interests will still be impossible to safeguard, and the red line of cultivated land protection will still be difficult to hold, thereby deviating from the original intention of this rural land system reform work and violating the reform principles set by the Central Committee. Therefore, in order to safeguard the smooth advancement of rural land system reform, it is necessary to reform and improve the current rural land rights system and strengthen the construction of the collective land rights system.

I. Clarifying collective land ownership is the first step in strengthening the construction of the collective land rights system

If collective land ownership is not clarified, it will be impossible to clarify collective land use rights such as land contractual management rights, homestead use rights, and collective construction land use rights, and it will also be impossible to achieve smooth and effective circulation of collective land use rights. The reason why the circulation of collective land use rights has stagnated and faced numerous difficulties over the past 20 years is precisely because the premise and foundation of clarifying collective land ownership was neglected, and the circulation of collective land use rights was carried out directly. Therefore, strengthening the construction of the collective land rights system must first clarify collective land ownership.

(1) Further implement the three types of farmer collective land ownership subjects: township (town), village, and villagers' group

For a very long period, whether in theoretical circles or in practical circles, there has been endless entanglement over the question of whether collective land ownership should be determined for the township, the village, or the villagers' group. The main reason is that the Land Administration Law promulgated in 1986 stipulated “village farmer collective ownership” as the basic form of ownership of rural collective land, while providing “township farmer collective ownership” and “villagers' group collective ownership” as exceptions. This is a misunderstanding. In fact, whether it is the township (town) farmer collective, the village farmer collective, or the villagers' group farmer collective, each has land belonging to itself, and the boundaries are very clear. The main reason is that during the people's commune period, the management system of “three levels of ownership, with the team as the foundation” was implemented, and land ownership was delimited on the basis of the basic accounting unit, with three situations: (1) the production team as the basic accounting unit, which accounted for more than 90% nationwide. In this situation, the vast majority of land belonged to the production team, but the production brigade and people's commune where the production team was located also owned a small amount of land; (2) the production brigade as the basic accounting unit, which accounted for no more than 10%. In this situation, production teams no longer existed, and the vast majority of land belonged to the production brigade, but the commune where the production brigade was located also owned a small amount of land; (3) entirely with the people's commune as the basic accounting unit, which was almost nonexistent, because at that time only a few dozen people's communes nationwide used the commune as the basic accounting unit. In this situation, neither production teams nor production brigades existed, and the land entirely belonged to the people's commune. Therefore, from the perspective of the amount of land occupied, the production teams at that time occupied the vast majority of collective land, while the production brigades and people's communes also occupied a small amount of collective land. In the early 1980s, people's communes began to gradually disintegrate. As communes were changed into townships (towns), production brigades into villages, and production teams into villagers' groups, the land originally owned by the people's communes, production brigades and production teams was correspondingly changed to ownership by the township (town) farmer collective, village farmer collective, and villagers' group farmer collective. When the first round of household contracting was implemented, where the land belonged to the villagers' group farmer collective, land was distributed equally with the villagers' group as the unit; where the land belonged to the village farmer collective, land was distributed equally with the village as the unit; where the land belonged to the township farmer collective, the township government was responsible for its operation and management. Although in many places, due to the imperfect institutions of villagers' groups, land owned by the villagers' group farmer collective was contracted out on its behalf by the village committee, the land was still distributed equally with the group as the unit, and ownership of the land still belonged to the villagers' group. Therefore, there is no question of whether the land of the farmer collective should be determined for the township (town), the village, or the villagers' group; whose land it is should be determined for whom. The practice of artificially changing the subject of land ownership regardless of the actual situation is obviously unworkable and will inevitably arouse strong opposition from the broad masses of farmers, and may even cause social unrest. In carrying out the work of confirming, registering and issuing certificates for rural collective land ownership, the relevant departments, in accordance with the Central Committee's requirement to “issue collective land ownership certificates to every subject that has ownership”, made their utmost efforts to determine collective land for the true ownership subject. However, due to tight time and heavy tasks, and because some local governments feared that issuing certificates would affect land expropriation, they still did not issue to villagers' groups the land ownership certificates that should have been issued to villagers' group farmer collectives, but instead issued them to villages. Therefore, this problem must be solved as soon as possible in conjunction with this rural land system reform work and the unified registration of immovable property.

In addition, in past work such as adjustments to township and village administrative divisions, relocation for town building, and the linked increase-decrease of urban and rural construction land, many places merged townships, villages and groups, creating great difficulties for confirming the subject of collective land ownership, because several original farmer collectives were merged into one farmer collective. If land ownership is determined for the merged farmer collective, because the original farmer collectives differed in the quantity and quality of land they occupied, the original farmer collectives would certainly not agree, thereby leading to new land disputes; if it is determined for the original farmer collectives, the original townships, villages and groups no longer exist. The author suggests that for such situations, in accordance with the principle of “separation of government and enterprise, separation of government and community”, new collective economic organizations should be established with each original farmer collective as the unit, and confirmed as the subject of collective land ownership. The newly established farmer collective economic organizations should be responsible for the operation and management of collectively owned land, and the merged townships, villages and groups should be responsible for social affairs management.

⟦NL> (2) Clarify the representative of the subject of collective land ownership

The original intent of abolishing the people's commune system was to achieve separation of government and community and separation of government and economy. However, after abolishing the people's commune system, although the administrative management and social management functions of the original people's communes, production brigades and production teams were respectively separated into township (town) governments, village committees and villagers' groups, most areas did not establish corresponding organizations to represent the exercise of land ownership. As a result, ownership of township (town) farmer collective land is exercised by township (town) governments, ownership of village collective land is exercised by village committees, and ownership of villagers' group farmer collective land is either exercised by village committees beyond their authority or has no representative to exercise it. Township governments are government organizations, and village committees and villagers' groups are villagers' self-governance organizations; letting them separately exercise collective land ownership is obviously contrary to legal principles, and also provides convenience in a disguised form for administrative power to replace or even infringe upon collective land ownership. In recent years, although some places, in accordance with the requirements of “separation of government and community, separation of government and economy”, have established organizations such as agricultural-industry-commercial companies and economic cooperatives to represent the exercise of land ownership, the actual persons in charge of these organizations are still township (town) government leaders and village committee cadres, and separation of government and community and separation of government and economy have not been achieved. Therefore, to effectively solve the problem of the representative of collective land ownership, it is necessary to truly implement separation of government and community and separation of government and economy. For village and group collective land, ownership must be exercised by representatives elected by members of the farmer collective, and cannot be exercised by village committees or village cadres as administrative subjects; for township (town) collective land, under appropriate conditions, nationalization may be considered. In recent years, Nanhai, Guangdong, is promoting the reconstruction of rural collective economic organizations in accordance with the principle of “separation of government and enterprise, separation of government and economy”, strictly distinguishing party affairs, village affairs and economic affairs in rural communities, in order to prevent administrative power from replacing or even infringing upon collective land ownership.

(3) Clearly define the qualifications of farmer collective members

To clarify the subject of collective land ownership and determine the representative of the subject of collective land ownership, the premise is that the qualifications of farmer collective members must be clarified. To reasonably determine the qualifications of farmer collective members, two aspects must be addressed: first, the confusion between the identity of farmer collective members and the identity of villagers. Farmer collective members are members of an economic organization, while villagers are citizens, members of the community organization in which they reside; the two are concepts in completely different senses and cannot be confused. During the people's commune period, due to the non-mobility of the population, farmer collective members were in fact villagers. However, with reform and opening up and the development of the socialist market economy, the identity of the rural population has changed greatly. In economically developed areas and urban-rural fringe areas, within a single village, there may simultaneously exist three identities: collective member, villager and urban resident. A collective member is definitely a villager, but a villager is not necessarily a collective member, and an urban resident is definitely not a collective member. Therefore, the provisions in the Land Administration Law and the Rural Land Contracting Law that the exercise of collective land ownership requires the consent of more than 2/3 of the members of the villagers' meeting or more than 2/3 of the villagers' representatives obviously confuse the two identities of “villager” and “collective member”. It should be provided that the exercise of collective land ownership requires the consent of more than 2/3 of the members of the farmer collective meeting or more than 2/3 of the representatives of collective members. To put it another way, the villagers' meeting can only decide ownership of village farmer collective land, and cannot decide ownership of land of township and villagers' group farmer collectives. Second, the issue of acquisition and loss of farmer collective member qualifications caused by changes in identity. Whether newly born population, population born in excess of the birth quota, women married in, live-in sons-in-law, adopted children, migrants, etc. acquire the qualifications of farmer collective members, and whether deceased persons, married-out daughters, university students, enlisted personnel, persons employed in cities, etc. lose collective member qualifications, are issues that have long remained unresolved in practice. According to relevant media reports, in a certain village in the suburbs of Baotou, farmer collective members were divided into exactly 6 grades, with each grade enjoying different land rights and interests. In some economically developed areas, in order not to lose member qualifications, there has even appeared the phenomenon of girls not marrying out. Therefore, reasonable provisions must be made as soon as possible on the acquisition and loss of farmer collective member qualifications. Otherwise, collective land ownership cannot be correctly exercised.

(4) Clearly define the content of collective members' rights and the ways of exercising them

Although the subject of farmer collective land ownership has been clarified, the ownership representative determined, and the acquisition and loss of collective member qualifications provided for, if the rights of collective members are not clearly defined, it will still be impossible to achieve the goal of safeguarding the land rights of the broad masses of farmers. Therefore, the content of collective members' rights and the ways of exercising them should be clearly defined in legislation. First, ensure that farmer collective members enjoy full decision-making power in matters such as land contracting, homestead allocation, adjustment of flexible land, auction of “four wastelands”, approval and circulation of collective construction land, and distribution of returns; second, clearly provide the procedures and methods for farmer collective members to exercise their rights, and gradually improve procedures and systems such as the form of voting on major matters, meeting records, representative signatures and document archiving; third, provide a relief system for when membership rights are infringed. In practice, once an infringement or dispute occurs, farmer collective members, as a disadvantaged group, find it very difficult to obtain effective relief.

(5) Grant collective land ownership complete powers and functions

From a legal principle perspective, ownership should include the powers and functions of possession, use, income and disposal. However, the current collective land ownership lacks the powers and functions of disposal and income, and cannot be called ownership in the true sense. The most typical example is that collective land must be expropriated as state-owned before it can enter the market. This has also become one of the main reasons for the emergence of “small property rights housing” and illegal land use. Therefore, in this rural land system reform work, collective land ownership should be granted complete powers and functions, and granted the rights of income and disposal. Most importantly, the scope of land expropriation should be narrowed; apart from expropriation for the needs of public interest, farmer collective land, as long as it conforms to planning, may decide on its own whether to use it directly for construction or to carry out development and construction through transfer, shareholding, joint ventures and other forms. If the powers and functions of collective land ownership are incomplete, safeguarding and realizing farmers' land rights and interests will still be an empty phrase.