An In-Depth Interpretation of the Implications and Challenges of the Separation of Three Rights in Agricultural Land
The General Office of the CPC Central Committee and the General Office of the State Council recently issued the "Opinions on Improving the Measures for Separating Ownership, Contracting Rights, and Management Rights of Rural Land" (hereinafter referred to as the "Opinions"). The so-called "separation of three rights" in rural land refers to dividing farmers' household contracted management rights into contracting rights and management rights on the basis of the original separation of collective land ownership and farmers' household contracted management rights, thereby implementing the parallel separation of ownership, contracting rights, and management rights. Below, the author provides a brief analysis of the effects of the "separation of three rights."
The Implications and Positive Effects of the "Separation of Three Rights" in Agricultural Land
According to the "Opinions," the implications and powers of the three rights in rural land are as follows:
The owner of collective land ownership has the right to possess, use, benefit from, and dispose of collective land in accordance with the law. In the process of improving the measures for the "separation of three rights," it is necessary to fully safeguard the farmers' collective powers over contracted land, including contracting out, adjustment, supervision, and recovery, and to give play to the advantages and role of collective land ownership.
The holder of land contracting rights has the right to possess, use, and benefit from the contracted land in accordance with the law. In the process of improving the measures for the "separation of three rights," it is necessary to fully safeguard the contracted farmers' powers to use, transfer, mortgage, and withdraw from contracted land. Contracted farmers have the right to possess and use the contracted land, to build necessary agricultural production, ancillary, and supporting facilities in accordance with laws and regulations, to independently organize production and operations and dispose of products and obtain income; they have the right to transfer contracted land through transfer, exchange, lease (subcontracting), shareholding, or other means and obtain income, to set mortgages on contracted land management rights in accordance with laws and regulations, to voluntarily withdraw from contracted land with compensation, and, where conditions permit, to obtain relevant subsidies for protecting contracted land.
The holder of land management rights has the right to possess, cultivate, and obtain corresponding income from the transferred land within a certain period in accordance with the law. If the operating entity re-transfers land management rights or sets mortgages in accordance with laws and regulations, it must obtain the written consent of the contracted farmer or their entrusted agent and file a written record with the farmers' collective.
The above "separation of three rights" complies with the wishes of the broad masses of farmers, especially the large number of farmers who have migrated to cities for work, to retain land contracting rights and transfer land management rights, as well as the requirements of families that continue to farm and industrial and commercial capital that goes to the countryside to achieve moderate-scale agricultural land management. This is conducive to accelerating the pace of new urbanization and agricultural modernization, and is another major institutional innovation in rural reform after the household contract responsibility system.
Challenges Facing the "Separation of Three Rights" in Agricultural Land and Responses
However, if the separated contracting rights are recognized as member rights, non-members of the collective economic organization may not contract land from the collective, and the contracting rights already obtained by farmers can only be transferred within the collective economic organization and with the consent of the farmers' collective; the transfer of land management rights must be filed in writing with the farmers' collective, and if the operating entity re-transfers land management rights or sets mortgages in accordance with laws and regulations, it must also obtain the written consent of the contracted farmer or their entrusted agent and file a written record with the farmers' collective. These provisions will, to a large extent, restrict the transfer of rural land and the realization of farmers' land property rights and interests, thereby being unfavorable to the realization of moderate-scale agricultural land management and the citizenization of migrant workers.
China's land system implements two forms of public ownership: state ownership and collective ownership. Land ownership may not be bought or sold. The so-called land transfer or transactions in the land market (including lease, shareholding, transfer, assignment, mortgage, and guarantee) are all limited to land use rights. Since urban state-owned land allows foreign businesses and foreigners to directly lease it, why is the contracting of rural collective land limited only to internal members of the collective economic organization? Moreover, in a market of lawful, voluntary, and fair competition, such transfers are compensated and time-limited. They will neither change the public ownership nature of land nor prevent all parties to the transaction from achieving mutual benefit and win-win outcomes and realizing Pareto improvements. Why not do it?
The "Opinions" point out that in the process of improving the measures for the "separation of three rights," it is necessary to fully safeguard the contracted farmers' powers to use, transfer, mortgage, and withdraw from contracted land, improve laws and regulations on the "separation of three rights," summarize and form practices and experience that can be promoted and replicated, and on this basis improve the legal system, accelerate the revision and improvement of relevant laws such as the Rural Land Contracting Law, and study and improve specific measures for the transfer of rural land management rights, mortgage loans, and the withdrawal of rural land contracting rights.
However, the relevant provisions of China's current Rural Land Contracting Law do not exclude members outside the collective economic organization from directly obtaining contracted management rights over rural collective land in accordance with the law, nor do they prohibit members of rural collective economic organizations from transferring contracted management rights to members outside the collective economic organization. The relevant provisions of the Property Law also clearly stipulate that land contracted management rights belong to the usufructuary rights it protects, and that the holder of usufructuary rights has the right to possess, use, and benefit from another person's immovable or movable property in accordance with the law, and stipulate that rural collectives have the right to contract land to units or individuals outside the collective.
It should be said that the above legal provisions all adhere to the "three bottom lines" of land reform, namely, "the public ownership nature of land is not changed, the red line for cultivated land is not breached, and farmers' interests are not harmed." According to the requirements of the "Opinions" and the spirit of comprehensively deepening reform of the Third Plenary Session of the 18th CPC Central Committee, the implementation of the "separation of three rights" in agricultural land and the series of reforms it triggers should undoubtedly, on the basis of the various powers of farmers' contracting and management rights already granted by the current Rural Land Contracting Law and Property Law, be further advanced, granting farmers' contracting and management rights more complete usufructuary powers, promoting the transfer of agricultural land property rights over a larger scope and to a greater extent, and accelerating the construction of a unified, orderly, and competitive land market between urban and rural areas, so that the market truly plays a decisive role in the allocation of land resources, and further improving relevant laws through reform pilot projects, rather than regressing from these originally reasonable legal provisions.