Social Sciences in China (Chinese Edition)

No.5, 2017

 

Legal Realization of the Separation of the “Three Rights” to Rural Land

(Abstract)

 

Cai Lidong and Jiang Nan

 

Separation of the three forms of rights torural land (rights to ownership, contracting and management) is a core element in today’s rural land system with Chinese characteristics and a necessary choice in the reform of rural land rights. It aims to realize the scale operation of rural land, eliminate the predicament of rural land finance, and increase agricultural productivity. The transition from the policy of separating the three rights to operable laws governing the policy’s implementation is premised on the collective ownership of rural land, based on stabilizing existing judicial relations in rural land, and directed toward the assetization of rights to rural land. Rural households’ land contract and management rights under the central government’s rural land policies are simply those under existing laws (including rights under the household responsibility system from which the land management right derives). In line with the logic of the emergence of usufruct in accordance with the execution of rights, land management rights constitute a secondary usufruct established by the owners of land contract and management rights in the exercise of their rights; hence the legal structure of contract and management rights is usufruct/secondary usufruct.In terms of interpretation, land management rights, being restricted by numerus clausus, are essentially not real rights, but once registered they take effect against third parties and are protected by tort law. In terms of legislation, the future real rights chapter in China’s civil code should elevate land management rights to the status of legal usufruct, thus giving them statutory status.