Should farmers pay the afforestation fund?

The Agriculture Law of the People's Republic of China - The Decision of the Standing Committee of the National People's Congress on Amending the Agriculture Law of the People's Republic of China was adopted on December 28, 2012 at the 30th session of the Standing Committee of the 11th National People's Congress of the People's Republic of China, and is hereby promulgated, effective as of January 1, 2013.

Article 67: Any organ or unit that collects administrative or institutional fees from farmers or agricultural production and operation organizations must do so in accordance with the provisions of laws and regulations. The items, scope and standards of such fees shall be made public. Farmers and agricultural production and operation organizations have the right to refuse fees that have no basis in laws or regulations.

At present, the basis for forestry authorities collecting the afforestation fund from farmers is the Measures for the Administration of the Collection and Use of the Afforestation Fund (Cai Zong [2009] No. 32) issued by the Ministry of Finance and the State Forestry Administration, and the Measures for the Administration of the Collection and Use of the Afforestation Fund of Shandong Province (Lu Cai Zong [2009] No. 123) issued by the Shandong Provincial Department of Finance and the Shandong Provincial Forestry Bureau.

Neither of these two Administrative Measures has the force of law or administrative regulations, and farmers and agricultural production and operation organizations have the right to refuse.

Both Administrative Measures claim to be "formulated in accordance with the Forest Law, the Decision of the Central Committee of the Communist Party of China and the State Council on Accelerating Forestry Development (Zhong Fa [2003] No. 9) and the Opinions of the Central Committee of the Communist Party of China and the State Council on Comprehensively Advancing the Reform of the Collective Forest Rights System (Zhong Fa [2008] No. 10)."

However, the formulation of both Administrative Measures was not authorized by law, and does not conform to the spirit of the two documents of the Central Committee of the Communist Party of China and the State Council.

1. Article 8, item (4) of the Forest Law provides for "collecting an afforestation fee, to be used exclusively for afforestation and forest cultivation." However, it does not authorize the finance and forestry authorities to formulate Administrative Measures. This falls under the principle that nothing may be done without legal authorization.

2. The Decision of the Central Committee of the Communist Party of China and the State Council on Accelerating Forestry Development also does not authorize the finance and forestry departments to formulate Administrative Measures.

Only Article 20 of this Decision touches on the afforestation fund, and the relevant content is: "Eliminate all unreasonable fees imposed on forest farmers and other forestry production and operation entities. Reform the measures for the collection, management and use of the afforestation fund; the collected afforestation fund shall be gradually and fully returned to forestry production and operation entities, and the resulting funding gaps of grassroots forestry management units shall be resolved by the government."

Neither of the two Administrative Measures contains any provision that "the collected afforestation fund shall be gradually and fully returned to forestry production and operation entities."

The finance and forestry departments formulated the two Administrative Measures precisely for the benefit of their own departments, infringing on the lawful rights and interests of farmers. For the competent authorities, rather than "fully returning it to forestry production and operation entities," they would prefer not to collect it at all!

3. The Opinions of the Central Committee of the Communist Party of China and the State Council on Comprehensively Advancing the Reform of the Collective Forest Rights System also does not authorize the finance and forestry departments to formulate Administrative Measures.

Only Article 16 of these Opinions touches on the afforestation fund, and the relevant content is: "Reform the administrative measures for the afforestation fund, gradually reduce the collection rate of the afforestation fund, regulate its use, and governments at all levels shall incorporate the administrative and institutional operating funds of forestry departments into their fiscal budgets."

Of the two Administrative Measures, one took effect on July 1, 2009, and the other on January 1, 2010. One has been in effect for more than 5 years, and the other for nearly 5 years. To date, no new provision has been issued to reduce the afforestation fund rate. In accordance with the spirit of Article 19, paragraph 2 of the Measures for the Administration of Land Expropriation of Shandong Province (Order No. 226 of the People's Government of Shandong Province), which states that "the comprehensive land price standard for land expropriation areas shall be adjusted and published once every 3 years," the afforestation fund rate should have been adjusted long ago. Why has it not been adjusted? It is for the selfish interests of the department.

From the perspective of law-based governance, I suggest that the relevant state organs confirm that the two Administrative Measures are invalid.