The reform of separating rural land ownership rights, contract rights, and management rights brings farmers tangible benefits
The Central Government's "Opinions on Guiding the Orderly Transfer of Rural Land Management Rights and Developing Moderate-Scale Agricultural Operations" (hereinafter referred to as the "Opinions"), aimed at rural land management rights transfer and scale operations, proposed separating rural collective land ownership rights, contract rights, and management rights into "three rights," further deepening reform of the rural land system. The State Council's "Notice on Implementing Several Fiscal Policies to Support the Citizenization of Agricultural Transfer Population" and others also proposed ten policies and other measures. At present, a new round of reform is rising in rural areas. What practical impact will the new policies have on farmers who transfer their land and move to cities?
Land contract management rights can be mortgaged for loans
[Case]
After the "Opinions" were issued, farmer Wang, who had been working away from home for many years, returned to his hometown famed for apples and Ya pears to start his own fruit company. He persuaded his family to pledge the management rights of his contracted land to the local rural credit cooperative, obtained a loan, and solved his funding problem. But some people believe that land management rights cannot be mortgaged, and that using contracted land management rights as collateral for loans or borrowing is illegal.
[Analysis]
Current legislation and judicial practice allow land contract management rights obtained by other means to be mortgaged, but take a negative attitude toward mortgaging land contract management rights obtained through household contract methods. Article 184 of the "Property Law" also lists collectively owned land use rights such as cultivated land, homestead land, private plots, and private hills as property that may not be mortgaged. After the "Opinions" proposed the "separation of three rights," the State Council issued the "Guiding Opinions on Carrying Out Pilot Programs for Mortgage Loans on Rural Contracted Land Management Rights and Farmers' Housing Property Rights" (Guo Fa [2015] No. 45). The pilot program involves breaking through relevant legal provisions such as Article 184 of the "Property Law" and Article 37 of the "Guaranty Law," and the State Council, in accordance with procedures, requested authorization from the Standing Committee of the National People's Congress to allow pilot areas to suspend implementation of relevant legal provisions during the pilot period. Land contract right mortgage acts meeting the following conditions should generally be recognized as valid: first, the mortgagee is a financing institution; second, the scope of debt secured by the mortgage is limited to the providing farmer's own debt; third, registration is a requirement for effectiveness.
Leasing out contracted land: migrant farmers receive land expropriation compensation
[Case]
Farmer Hu leased out his contracted land and took his wife and children to work elsewhere for more than ten years, but his household registration was never moved out of the village. Recently, the city expanded, expropriated village land, and gave a considerable amount of economic compensation. When he heard about this, he came back and sought out the village committee to demand a share of the compensation money. The village committee did not agree to let him participate in the compensation distribution, and the two sides had a dispute over this. But with the issuance of the "Opinions," he received this money.
[Analysis]
Land expropriation compensation fees are economic compensation for losses caused to the land owner and land user's investment in and income from the land due to state expropriation of land. The distribution of land expropriation compensation fees should generally adhere to the following principles: (1) the principle of being used for farmers whose land is expropriated. When farmers' contracted land is expropriated or requisitioned, land compensation fees are generally mainly used for the farmers whose land is expropriated; when other collective land not contracted by farmers is expropriated or requisitioned, land compensation fees may be distributed to all members of the collective economic organization. (2) The principle of openness, fairness, and justice. (3) The principle of earmarking funds for specified purposes. (4) The principle of democratic deliberation and legality.
Although Hu worked away from home for many years, his household registration was not moved out. He was still managing and operating the land in the form of leasing, and his collective land contract management relationship had not been dissolved, so he should participate in the village's land compensation fee distribution. Specifically, this should be discussed and decided by the village representatives' meeting, but the decision should be legal and should follow the above principles. This view is supported in the "Opinions." After the "Opinions" were issued, he received this money.
Change in the contracting entity: entrepreneurial contract continues to be performed
[Case]
At the head of the village where rural youth Yu lived was a low-lying field that accumulated water year-round and had always lain idle. Five years ago, after Yu graduated from a fisheries university with a major in aquaculture and worked for one year at a breeding farm elsewhere, he returned home to start a business. With the consent of the village committee and approval from relevant departments, he developed that low-lying field into a fish pond. At the time, Yu signed a ten-year agreement with the village committee, and Yu operated this fish pond. Not long ago, during the county's rural land property rights system reform, the contracting authority for this land was transferred to the First Villagers' Group under the village committee. Some villagers agitated to take back the fish pond. According to the "Contract Law," the "Rural Land Contracting Law," and the "Opinions on Guiding the Healthy Development of the Rural Property Rights Transfer and Trading Market" issued by the State Council after the "Opinions" were released, the changed contracting entity decided to continue performing the original contracting contract.
[Analysis]
China's "Land Administration Law" provides that state-owned land and land collectively owned by farmers may be assigned for use by units or individuals in accordance with law. Where land collectively owned by farmers belongs by law to the village farmers' collective, it shall be operated and managed by the village collective economic organization or the villagers' committee; where it already belongs separately to the farmers' collectives of two or more rural collective economic organizations within a village, it shall be operated and managed by each rural collective economic organization or villagers' group within the village. A change in the contracting entity should not affect the continued performance of the land management contract signed by Yu and the village committee. The "Rural Land Contracting Law" provides: the state protects the lawful rights and interests of collective land owners and protects the contractor's land contract management rights, and no organization or individual may infringe upon them. After a contracting contract takes effect, the contracting party may not modify or rescind it due to a change in the undertaker or person in charge, nor due to the division or merger of the collective economic organization. In the reform of the rural property rights system, the provisions of the above laws must still be observed. Even under the State Council's "Opinions on Guiding the Healthy Development of the Rural Property Rights Transfer and Trading Market," rural property rights transferred and traded through the rural property rights transfer and trading market include resource assets and operational assets contracted to households and uniformly operated and managed by rural collectives, and the same applies.
Farmers can settle in cities without stripping off their farmer status
[Case]
Rural youth Wang served two full years in the armed police force, and after retirement was recruited by an enterprise in the city as a security guard. Before joining the military, he was engaged to a rural girl from his hometown. After retirement he married, and they have now been married for more than three years. Their child is already three years old, but the wife has never come to the city to settle. Because the wife's household registration has not been moved in, the child has never been registered for urban household registration. Why has the wife not come to the city to settle? It is because settling in the city requires moving out the rural household registration, and moving the household registration out means the loss of rural land contract rights and homestead land use rights. As income from transferring and leasing land increases year by year, rural people will not easily give up these rights. After the "Opinions" were issued, the State Council's "Notice on Implementing Several Fiscal Policies to Support the Citizenization of Agricultural Transfer Population" resolved this problem, and they were able to settle in the city without stripping off their "farmer status" and without completely "separating" from the countryside.
[Analysis]
The "Land Administration Law" provides: state-owned land and land collectively owned by farmers may be assigned for use by units or individuals in accordance with law. Units and individuals using land have the obligation to protect, manage, and rationally use the land. Land collectively owned by farmers is contracted and operated by members of the collective economic organization, and the term of land contract management is thirty years. Farmers' land contract management rights are protected by law. The "Rural Land Contracting Law" provides: the state protects the lawful rights and interests of collective land owners and protects the contractor's land contract management rights, and no organization or individual may infringe upon them. The state protects contractors' transfer of land contract management rights in accordance with law, voluntarily, and for compensation. During the contract period, the contracting party may not take back the contracted land.
After the "Opinions" were issued, the State Council's "Notice on Implementing Several Fiscal Policies to Support the Citizenization of Agricultural Transfer Population" proposed ten policy measures: among them, Article 9 further clearly provides: maintain the land contract rights, homestead land use rights, and collective income distribution rights of farmers who settle in cities. Local governments may not forcibly require farmers settling in cities to transfer their rural land contract rights, homestead land use rights, and collective income distribution rights, or use them as a condition for settling in cities.