What theoretical and policy issues are involved in the reform of farmland property rights?
[Core note]In carrying out urban-rural integration experiments, some regions have proposed that rural collective land and other resource assets should be confirmed as rights and ironclad certificates issued to farmers who are members of rural collective economic organizations. Regarding land expropriation compensation, the policy of “compensate whoever is expropriated” is adopted. However, when distributing land expropriation compensation income, there is the problem that farmers' land rights confirmation certificates become invalid, and some farmers, in accordance with existing laws, demand that the compensation be divided equally among all members within the collective economic organization, and ultimately their interest demands are realized.
The contradiction between members' rights and usufructuary rights in rural collective agricultural land
The “Decision” of the Third Plenary Session of the 18th Central Committee proposed: “Stabilize rural land contractual relationships and maintain them unchanged for a long time.” In carrying out urban-rural integration experiments, some regions have proposed that rural collective land and other resource assets should be confirmed as rights and ironclad certificates issued to farmers who are members of rural collective economic organizations. Regarding land expropriation compensation, the policy of “compensate whoever is expropriated” is adopted. However, when distributing land expropriation compensation income, there is the problem that farmers' land rights confirmation certificates become invalid, and some farmers, in accordance with existing laws, demand that the compensation be divided equally among all members within the collective economic organization, and ultimately their interest demands are realized. The Beijing municipal government also stipulates that “when state construction land expropriation occurs, whether it is farmers' contracted land, villagers' homestead land, collective construction land or other land compensation payments, they shall all be distributed equally or quantified equally among the members of the collective economic organization as determined at the time of the expropriation plan.”
Rights confirmation faces institutional bottlenecks, and even after confirmation it may be overturned. What does “ironclad certificates not being ironclad” show? This reflects contradictions between laws as well as contradictions between law and policy. Article 59 of the Property Law stipulates: “The immovable and movable property owned by a farmers' collective belongs to the collective ownership of all members of the collective”; Article 5 of the Rural Land Contracting Law also stipulates the rights of members. The above legal provisions involve farmers' members' rights to agricultural land, which implies the idea of “naturally endowed land rights”, a kind of individual right that disappears when the member leaves or dies. The “Decision” of the Third Plenary Session of the 17th Central Committee proposed: “Grant farmers more complete and guaranteed land contractual management rights, and the existing land contractual relationships must remain stable and unchanged for a long time”; Article 26 of the Rural Land Contracting Law stipulates: “During the contract period, the party issuing the contract may not take back the contracted land.” Article 27 stipulates: “During the contract period, the party issuing the contract may not adjust the contracted land.” Article 32 stipulates: “Land contractual management rights obtained through household contracting may be circulated according to law by means of subcontracting, leasing, exchange, transfer or other methods.” The above legal provisions involve farmers' usufructuary rights to agricultural land, which implies the property rights principle of “no increase upon birth, no decrease upon death”. In practice, individual rights and property rights will inevitably conflict, and the claims of both rights can find legal basis.
To resolve the contradiction between individual rights and property rights, one reform approach worth exploring is to transform the rights of individual members of rural collective economic organizations into members' rights based on households, and to fix the rights of farmer members of collective economic organizations to the land contractual management rights of the organization and other collective assets at a certain point in time, so that members' rights and property rights are unified. In specific operations, this involves the issue of land adjustment in rights confirmation. Unchanged for a long time, we believe, should mean unchanged for a long time beyond the contract period. But where is the starting point? Is the land confirmed as rights the land farmers obtained in the second round of contracting or land that has been adjusted? Can it still be adjusted before the starting point is determined? Experiments in some places are that in the process of rights confirmation, on the basis of fully respecting the wishes of the masses, land adjustment and how to adjust it are handed over to the masses for discussion and resolution, adhering to “major stability and minor adjustment”, and after the contracted land is actually measured and confirmed, implementing “no land increase when people are added, no land decrease when people are removed”, with contractual management rights unchanged for a long time based on the household as the unit. Changes in membership such as married-out daughters, live-in sons-in-law, and newborns are resolved within the household itself. Disputes over contractual management rights are transformed from administrative disputes between individuals and the collective into civil disputes over property rights within the family, and no matter how the population changes in the future, land will no longer be adjusted. Under what conditions farmers have the right to dispose of and transfer their land contractual management rights is determined by law.
Rural China currently has more than 200 million small farmers, and nearly 270 million rural laborers whose main employment channel is not agriculture; the main means of production on which they depend for survival is not land. At present in rural areas, the proportion of agricultural income from land in total income continues to decline, the livelihood security function of land is gradually weakening, people have gradually accepted “no decrease upon death, no increase upon birth”, and conditions are somewhat in place for achieving “unchanged for a long time” beyond the contract period, making it possible to shift land from a “fairness” function to an “efficiency” function. However, this exploration has already broken through the framework of the Rural Land Contracting Law, and must be followed up by revisions to the Rural Land Contracting Law and corresponding decrees.