Land reform shelved, collective ownership faces challenges
“Continuing to shelve reform of collective ownership and merely tinkering with the ‘separation of the three rights’ makes it difficult to resolve the institutional predicament facing China's rural development.” At a forum recently held by China Agricultural University, Liu Shouying, deputy director of the Rural Department of the Development Research Center of the State Council, put forward the above argument.
Liu Shouying said that the “separation of the three rights” reform is in essence a continuation of the strategy of rural land system reform over the past 30-plus years. Because ownership is locked, all that can be done is to explore the forms of realization of collective land ownership, and therefore the basic thread of rural land system reform is to tinker with the separation of ownership and use rights.
“The strategy of shelving ownership avoided land reform dying prematurely because of disputes over the path, and therefore is of great significance.” However, Liu Shouying said, continuing along the logic of the separation of the two rights and extending it to the separation of the three rights, while shelving the issue of collective ownership, faces difficulties in both law and institutional operation.
⟦NL> Among these, the current legal and institutional arrangements have the following problems: First, after collective ownership becomes member ownership, collective members are affected by statutory changes in population increase and decrease, membership qualifications change, and this generates demands to change collective land and income distribution; second, in the contracting-out relationship between collectively owned land and contracted land, the “contracting-out party” frequently infringes on farmers' land contract rights, affecting the land property rights (property rights) granted to farmers by the “Property Law.”
Third, the collective organization, as the land contracting-out party, accepts the entrustment of collective members for land contracting-out and income distribution and disposal, creating a principal-agent problem; fourth, although the right to transfer land is derived from contracted management rights, there is no clear legal expression of the rights and responsibilities relationship between the subject transferring the land (the original contractor) and the subject taking over the contract (the operating subject). The legal relationships and rights provisions among collective ownership, contracted management rights and transferred management rights are incomplete.
Looking at the practical level, Liu Shouying said, the reform logic of the “separation of the two rights” has left many thorny unresolved problems:
The first is that the “collective” is often restless. The original intention of the reform was to make use rights substantive, let property rights play a role, and enable farmers to farm with peace of mind, while still giving collective ownership a nominal status in law, but it later proved that the “collective” still appears from time to time. Because collective ownership still exists as a first-level subject.
Second, the things that grow dependent on the “collective” cannot be explained clearly or reasoned out. At present, in places where the “collective” is strong, it mainly relies on striking first to gain the upper hand, with powerful people in the collective turning farmland into construction land in the name of the village. The things that grow out of the collective cannot be separated from two institutional genes: one is land relying on the collective, and the other is reliance on collective membership rights. Output from “collective” land often has unclear property rights, attracting all parties to “stir things up,” and the more developed the area, the more troublesome it is, with rural governance problems piling up.
Third, the concept of membership rights has been strengthened. The result of the reform is that it has become membership-rights ownership. The central policy originally hoped to cut this bond, but the problem now faced is that membership rights have been internalized. In farmers' thinking, collective ownership means everyone has a share. “Everyone has a share” conflicts with policies such as “land is not increased when people are added and not reduced when people are removed” and “unchanged for a long time.”
The fourth problem is that “contract rights and management rights” are protected as one, but both feel unprotected. The “Land Contracting Law” and the “Property Law” protect farmers' land contracted management rights. When the contractor and the operator are one and the same, “contracted management rights” as a kind of rights protection are not a problem. In the early stage of reform, farmers were basically owner-cultivators. But as the population and labor force became non-agricultural, the contractor may not be the operator. Contract rights and management rights become separated, and thus either contract rights are infringed or management rights are not protected.
Regarding the above problems, Liu Shouying's suggestion is that it is necessary, through deepening reform of collective ownership, to reconstruct the rights system of rural land collective ownership, use rights and transfer rights, and provide farmers with a land institutional structure that is complete, clearly owned and has stable expectations. The following points need to be put into practice:
First, deepen reform of collective ownership. Further clarify the principal-agent relationship between collective members and collective economic organizations. On the basis of membership-rights collective ownership, solidify the identity qualifications of membership rights. Implement “unchanged for a long time,” and change the time-limited contracting system into a land system without a time limit.
Second, strengthen the property-rights attributes of land contract rights. While reforming collective ownership, change the current contracting-out and contracting relationship between collective ownership and contracted management rights, so that all members of the collective use their own land; after the implementation of “unchanged for a long time,” the land becomes the property of the solidified members. Improve the empowerment of land use rights so that they contain use rights, income rights, transfer rights, guarantee and mortgage rights, and inheritance rights.
Third, clarify the rights connotation and rights protection of transferred management rights. Transferred management rights are rights derived from land use rights; the original land user and the transferred operator sign a contractual relationship, stipulating the term, rights and responsibilities, protecting the original land user's land rent income and land quality; protecting the transferred operator's investment security and income rights, and clarifying the transferred operator's land rights during the lease term.