PRACTICE ORIENTATION AND INNOVATION OF CONTRACTED LAND RIGHT SYSTEM IN THE CIVIL CODEII. THE PRACTICAL ORIENTATION OF THE ‘SEPARATION OF THREE RIGHTS’ OF CONTRACTED LAND INCORPORATED INTO THE CIVIL CODE
A. The Practical Dilemma of Contracted Land Rights System of ‘Separation of Two Rights’
B. The Institutional Implications of the ‘Separation of Three Rights’ of Contracted Land Rights System
III. THE STRUCTURE OF THE ‘SEPARATION OF THREE RIGHTS’ OF CONTRACTED LAND
A. The Land Contractual Management Right Derived from Collective Ownership of Agricultural Land Is Usufruct in Nature
B. The Land Management Right Derived from Land Contractual Management Right Is Creditor’s Right
IV. THE SPECIFIC APPLICATION OF CONTRACTED LAND ‘SEPARATION OF THREE RIGHTS’ SYSTEM
A. The System Structure of Land Management Right and Its Transfer
B. The Realization Mechanism of Mortgage Right of Land Contractual Management Right
C. The Realization Mechanism of Mortgage Right of Land Management Right
In order to promote the implementation of the revitalization of the countryside and to realize the moderate scale of agricultural land management, the Civil Code incorporates the structure of ‘separation of three rights’ of contracted land, which constitutes a major innovation in China’s rural land law reform. On the basis of the implementation of collective land ownership, according to article 339 of the Civil Code, the land management rights can be generated through the lease, shareholding or other circulation of land contractual management rights, forming a new contracted land rights system of ‘collective land ownership, land contractual management rights, land management rights’. The holder of the land management rights is not limited to farmers, which breaks through the institutional restriction on the circulation of land contractual management rights under the rights structure of ‘separation of two rights’ and provides an institutional basis for the circulation of the land management rights into the market, and helps solve the dilemma of fragmented farming of agricultural land. The provision that the right to use arable land cannot be mortgaged has been removed by article 399 of the Civil Code, which systematically loosens the mortgage of the land contractual management rights and helps farmers achieve their financial purposes. The realization of the mortgage with the land contractual management rights as the object can adopt the form of compulsory management to protect the realization of the creditor’s right and prevent farmers from losing their land in the meantime. The realization of mortgage with the land management rights as the object can be directly applied to the rules of realization of security interest to solve the financial dilemma of new agricultural management subjects.The legal reform of contracted land is related to the rights and interests of hundreds of millions of farmers in China and the implementation of the revitalization of the countryside, which is an important content to the promotion of comprehensively deepening reform and an issue of the times that must be responded to in the compilation of the Civil Code of the People’s Republic of China (hereinafter referred to as the Civil Code). In order to solve the practical dilemma of fragmented farming, achieve the goal of moderate scale agricultural operation, and promote the implementation of the revitalization of the countryside, a new contracted land rights system of ‘separation of three rights’ has been established by the Civil Code. The contracted land rights system of ‘separation of three rights’ has a strong practical orientation and rich institutional implications, and aims to solve the practical difficulties of the right structure of ‘separation of two rights’, which is a major innovation of China’s rural land legal reform.In the application of the Civil Code, to make better practical use of the rights system of ‘separation of three rights’ in agricultural land, it is necessary to scientifically define the specific connotation and interrelationship of the three rights, gradually establish a standardized and efficient mechanism for the circulation of land management rights, and seriously study the realization path of the mortgage of land contractual management rights and the mortgage of land management rights, so as to provide an institutional basis for the implementation of China’s revitalization of the countryside. Specifically, the following questions need to be answered urgently.First, what is the legal basis and practical orientation of the new contracted land rights system of ‘separation of three rights’ established by the Civil Code? In practice, what practical dilemmas have arisen in the contracted land right structure of ‘separation of two rights’? What are the practical effects and institutional advantages of the new contracted land rights system of ‘separation of three rights’?Second, what is the rights structure of the ‘separation of three rights’ of contracted land? How to correctly deal with the relationship between the three rights of collective land ownership, land contractual management rights and land management rights, so as to build a rural land property rights system with clear attribution, complete power, smooth circulation and strict protection?Third, in interpreting and applying the contracted land rights system established by the Civil Code, how to fully liberalize the land management rights and thus adapt to the realistic demand of new agricultural technological progress for moderate scale operation? How to give full play to the institutional functions of the financial guarantee of land contractual management rights and land management rights? The response to these questions directly determines the practical function of the contracted land rights system in the Civil Code and affects the implementation of the revitalization of the countryside.II. THE PRACTICAL ORIENTATION OF THE ‘SEPARATION OF THREE RIGHTS’ OF CONTRACTED LAND INCORPORATED INTO THE CIVIL CODEThe contracted land rights system of ‘separation of three rights’ established by the Civil Code, aims at solving the drawbacks of fragmented farming under the ‘separation of two rights’ system and meets the needs of modern agricultural development for moderate scale operation of contracted land.A. The Practical Dilemma of Contracted Land Rights System of ‘Separation of Two Rights’For a long time, the contracted land rights system of ‘separation of two rights’ has played a significant role in China’s agricultural development and social progress. After the reform and opening up, in order to stimulate farmers’ enthusiasm for production, solve the contradiction of vast population and limited farmland, maximize the use of contracted land, and respond to farmers’ strong desire for independent contract management, China implemented the household contract responsibility system, and built the contracted land rights system of ‘separation of two rights’ on this basis. At that time, the implementation of the contracted land rights system of ‘separation of two rights’ was determined by China’s realities and the development of agriculture in China. This rural land system embodied significant Chinese characteristics. On the one hand, vast population and limited farmland is the biggest reality in China, and the land system fully reflects fairness, so it is appropriate to establish the collective ownership of rural land; on the other hand, the problem of feeding more than one billion people is needed to be solved and developing the market economy to improve efficiency is evitable, so the land contractual management rights based on family management is well adapted to the characteristics of agricultural development. Under this rights system, farmers’ land contractual management rights derived from collective land ownership, enable them to share the right to possess, use and enjoy collective land ownership, and to gain management autonomy of contracted land and the right to dispose of agricultural products which were previously unavailable to them, thus enhancing their production incentives and helping them to fully utilize their household resources, increasing the labor productivity of rural society at that time. From decades of practice, the rights system of ‘separation of two rights’ can not only stimulate farmers’ enthusiasm for agricultural production, solve the efficiency problem of agricultural production, but also guarantee farmers’ survival and solve the fairness of agricultural land resource allocation, which is in line with the actual production in China’s rural areas and thus can be supported and embraced by farmers. It is a reasonable and effective institutional arrangement proven by practice.However, it should be realized that after decades of development in China’s rural areas, the contracted land rights structure of ‘separation of two rights’ also faces some new practical problems that need to be solved.First, as China’s social and economic development and urbanization accelerates, a large number of farmers leave the countryside, and the number and proportion of agricultural laborers both decline significantly. This has triggered some new changes in various elements of China’s agricultural production and operation, which to a certain extent has led to the abandonment of contracted land. One of the phenomena is that a number of farmers who have gone out to work have transferred their land contractual management rights and handed over their contracted land to others for cultivation. However, in the rights system of ‘separation of two rights’, the separation of rural collective land ownership and farmers’ land contractual management rights is only a division of rights within the collective, and in principle, only the farmers of the collective economic organization have the right to obtain the right to use the collective land, thus forming a rigid phenomenon of contracted land use.Second, the fragmented business model of land contractual management rights has limited the application of agricultural technology to some extent. With the progress of agricultural technology, moderate scale operation has become the trend of modern agricultural development. However, in terms of production model, farmers based on family, as the subject of the land contractual management rights, constitute an independent production unit under the ‘separation of two rights’ rights system. This is a kind of fragmented agricultural production method, which is obviously not conducive to releasing the function of production factors of land contractual management rights best and largely hinders the moderate scale operation of agriculture. So it requires transformation necessarily.Third, due to the subject of rights restricted by the identity of farmers, it is difficult to transfer the land contractual management rights and to form moderate scale operation. In the rights system of ‘separation of two rights’, the subject of land contractual management rights is specific and should be a member of the collective; the object of land contractual management rights can only be the collective land. Land contractual management rights confined within farmers, will inevitably result in the division of the rural market, preventing the smooth flow of rights and limiting the modernization and transformation of the agricultural industry. In addition, land contractual management rights are allocated once, ‘the land remains the same no matter the increase or decrease in the number of people’, and the rights shall not be adjusted at will. Being restrained by the identity of the subject of rights, it is not conducive to the cultivation of new management subjects and the realization of the goal of moderate scale operation of agricultural land.Fourth, before the enactment of the Civil Code, the right to use arable land is prohibited from being mortgaged by article 184(2) of the former Property Law. Although the purpose of prohibiting the land contractual management rights as the object of mortgage was to strictly protect arable land and prevent farmers from losing their land, it also made it difficult for farmers to gain financial guarantee through land contracting, which to some extent restricted agricultural production and operation and expanded reproduction. From the perspective of the law of agricultural development, a large amount of financial support is needed in agricultural modernization. However, for agricultural operators, land contractual management rights, the most important asset, cannot be mortgaged, leaving contracted land resources sinking to sleep. Therefore, this system design prevents land contractual management rights from entering the market, which hinders the financial needs of agricultural business entities and prevents them from realizing the market value of the land.The new problems encountered by the above-mentioned rights system of ‘separation of two rights’, such as increased separation of people and land, restricted free flow and shortage of agricultural funds, have forced the change of the legal system of agricultural land. The purpose of promoting the ‘separation of three rights’ reform is to separate the social security function of land contractual management rights from the property disposal function, so that land management rights can be created from them and enter the market as a pure property right to maximize benefits in the transaction.B. The Institutional Implications of the ‘Separation of Three Rights’ of Contracted Land Rights SystemUnder the realistic demand of agricultural production and operation, the legal reform of ‘separation of three rights’ of agricultural land came into existence. Under the system of ‘separation of three rights’, the rights of rural land ownership, land contractual management rights and land management rights are enjoyed by different parties of civil legal relations. The way of the legal reform of ‘separation of three rights’ is that, on the basis of the collective ownership of rural land, land management rights, derived from land contractual management rights of farmers and not limited to identity, are enjoyed by new business entities, thus realizing the goal of liberalizing land management rights. This reform is the core of the modern agricultural land system with Chinese characteristics, aiming to solve the new problems of the property rights system posed by modern agricultural production practices, realize the large-scale operation of agricultural land, solve the dilemma of agricultural land financing, and improve the efficiency of agricultural production.The rights system of ‘separation of three rights’, maintaining collective land ownership in rural areas as its premise, guides urban economic forces to enter the agricultural land market reasonably through the creation and activation of land management rights, and provides institutional supply for modern agricultural production. Under the ‘separation of two rights’ right structure, contracted land is basically dormant due to the limitation of the subject of land contractual management rights. In contrast, the dormant agricultural land resources can be awakened under the contracted land rights structure of ‘separation of three rights’, so that they can enter the market circulation through the establishment and transfer of land management rights. After all, the protection of agricultural land should not be premised on the prohibition of transferring, renting or mortgaging the right to use agricultural land.Making good use of the decisive role of the market in the resource allocation of contracted land helps to improve the efficiency of contracted land utilization on the basis of adhering to land contractual management rights. In order to give full play to the role of the market mechanism, it is necessary to guarantee the free circulation of land management rights and maintain the certainty of land management rights acquired by new business entities. Therefore, separating the land management rights from the land contractual management rights and transferring them in an orderly manner is of great importance to realize the moderate scale operation of agriculture, and is a significant innovation in the reform of China’s agricultural land legal system.According to the law of development of modern agricultural production, the legal system of agricultural land needs to be changed in accordance with social development. With the progress of agricultural technology, the shortcomings of the rights system of ‘separation of two rights’ of agricultural land have gradually emerged. The fragmentation of agricultural land management is caused by a business model in which the family is the basic unit of production, which directly affects the rational allocation of production factors, leads to problems of agricultural production organization and expensive crop harvesting costs and is not conducive to the application of modern agricultural technology. The purpose of the legal reform of the ‘separation of three rights’ of agricultural land is to adjust the property right structure of agricultural land properly, especially to create and release the land management rights, achieving the goal of optimizing the allocation of contracted land resources and promoting appropriate scale operation and modern agricultural development. This demonstrates the development trend of the modern property rights system from attribution to utilization.An important innovation of the contracted land rights system of ‘separation of three rights’ is the creation of the rights system of land management rights. The system functions of land management rights can be embodied in the following aspects: First, seek a breakthrough in the legal reform of agricultural land on the basis of insisting on collective ownership of rural land and land contractual management rights of farmers; Second, resolve the problems of abandonment of contracted land and fragmentation of farming models through the transfer of land management rights; Third, cultivate new agricultural business entities effectively and handle their legal relationships with farmers rationally; Fourth, allow financial guarantee and smooth circulation of land management rights, and provide financial security for new business entities to engage in agricultural operations; Fifth, land management rights entering the market can give full play to the role of the market, and provide a right basis for realizing the scientific allocation, large-scale and efficient operation of contracted land resources.It can be seen that under the ‘separation of three rights’ of contracted land, China’s rural land rights have undergone two separations: land contractual management rights separated from land ownership, and land management rights separated from land contractual management rights, reflecting the modern development trend of the agricultural land rights system from focusing on ownership to focusing on use. The former focuses on providing farmers social security, while the latter focuses on pursuing the efficient use of agricultural land. To this end, the Civil Code responds to the real demand of moderate scale operation of agriculture. According to the practice in the pilot areas, the rights system of ‘separation of three rights’ has not only promoted the development of agricultural industry, but also achieved perfectly good social benefits, which is a major innovation in the reform of the agricultural land legal system.
III. THE STRUCTURE OF THE ‘SEPARATION OF THREE RIGHTS’ OF CONTRACTED LANDThe rights system of ‘separation of three rights’ of contracted land has enriched the legal realization form of collective ownership of rural land in China. This is reflected in the fact that, the land contractual management rights of farmers are stabilized on the basis of the collective ownership of rural land, and the land management rights of pure property acquired by new business subjects provide the institutional foundation for realizing the goal of moderate scale operation.A. The Land Contractual Management Right Derived from Collective Ownership of Agricultural Land Is Usufruct in NatureIn the structure of the ‘separation of three rights’ of contracted land, it is necessary to adhere to collective ownership of rural land, that is, the legal form of collective ownership of rural land, to highlight the fairness of the rights system of contracted land and to provide social security for farmers to a certain extent. Any legal system reform of agricultural land needs to respect the established legal system and rights system. Insisting on collective ownership of rural land means that whether the powers separated from ownership are aggregated into land contractual management rights, or land management rights are generated when land contractual management rights are transferred, the ownership of contracted land still belongs to the rural collective regardless of the subject of the rights.History has proved that a successful agricultural land legal system reform must uphold the concept of fairness and justice and provide an institutional basis for protecting the fundamental rights and interests of farmers. Regarding the legal reform of contracted land, it is necessary to prevent farmers from losing their land. The construction of the contracted land rights system of ‘separation of three rights’ is a reform based on the adherence to collective ownership of rural land straightforwardly (article 260 of the Civil Code). The reform focuses on the right to use contracted land, not on the collective ownership of rural land. The retention of collective ownership of rural land means that the ownership of collective land remains unchanged, demonstrating the fairness embedded in China’s contracted land rights system, which can provide farmers with a foundation for their livelihoods.As far as the structure of rights sources are concerned, the collective ownership of rural land is the basis of the land contractual management rights acquired by farmers and a precondition for carrying out family contract management. The legal system reform of agricultural land should not cause undue losses to established rights holders. The connotation of ‘separation of three rights’ includes three aspects: insisting on collective land ownership, stabilizing farmers’ land contractual management rights, and liberalizing the land management rights of new business subjects. If land contractual management rights are unstable, it will violate the original purpose of the legal reform of agricultural land. Therefore, the title and nature of the land contractual management rights should not be changed in the system of ‘separation of three rights’ of contracted land.The essence of land contractual management rights is usufruct. According to article 331 of the Civil Code, land contractual management rights, as a kind of usufruct, is the right to possess, use and enjoy the immovables owned by others in accordance with the law, and is a kind of right over the property of another established over the collective ownership of rural land for the purpose of actual land operating. It is the validity of the land contractual management rights that allows farmers to occupy, apply, and receive the benefits of contractual management of agricultural land. The possession, use, enjoyment and disposal of agricultural land are the powers of collective ownership of rural land, which can be separated from ownership and transferred to farmers other than the owner. This is a manifestation of the theory of ‘separation of powers and rights’, which can also explain the elasticity of land ownership. When a limited real right is derived from ownership, it is like a ball deformed by pressure, and after this limited real right is extinguished, ownership is restored to its original state by elasticity.The concept and title of the land contractual management rights are retained by the Civil Code, which deserves recognition. In order to achieve efficient use of agricultural land resources, the Civil Code is objectively required to create conditions for the exercise of agricultural land rights. Based on this, the Civil Code follows the legislative expression of the Law on the Contracting of Rural Land on the ‘separation of the three rights’ of contracted land, confirms the separation of the land contractual management rights and the land management rights, and continues to use the concept of the land contractual management rights, which is generally understood, widely accepted and heartily supported by hundreds of millions of farmers, achieves the dual purpose of meeting the logic of rights generation and stabilizing the management expectations of farmland of new management subjects based on minimizing the cost of institutional reform. The reason is that if the land contractual management rights are not ‘permanent’, then land management rights derived from shall not be stable either.B. The Land Management Right Derived from Land Contractual Management Right Is Creditor’s RightsThe main difference in the structure of the ‘separation of three rights’ of contracted land compared to the ‘separation of two rights’ is that the former creates a new type of right, namely the land management rights. In accordance with the Civil Code and the Law on the Contracting of Rural Land, the holder of the land contractual management rights has the right to transfer the land contractual management rights through lease or shareholding, whereby the separation of the land management rights from the land contractual management rights can be realized.Land management rights emerge from the land contractual management rights from the logic of the generation. The purpose of stabilizing land contractual management rights is to realize the function of contracted land as a guarantee of survival for farmers, and to provide an institutional basis for the generation of land management rights. The creation of land management rights is the result of the transfer of land contractual management rights, which provides a private law basis and an institutional foundation for the realization of moderate scale operation of agricultural land. The title and attribute of the land contractual management rights will not be changed if the land management rights are derived from, just as the title of collective ownership of rural land will not be transformed if land contractual management of farmers generated. Therefore, the contracted land rights system of ‘separation of three rights’ is reflected in three aspects: land ownership (rural collective), land contractual management rights (farmers) and land management rights (new management subjects). The core of the contracted land rights system of ‘separation of three rights’ is to determine the nature and content of the land management rights which are newly created.On the legal nature of land management rights, the law circles put forward different viewpoints, such as the theory of real right, the theory of obligatory right, and the theory of distinguishing between real right and obligatory right. Some scholars think that in order to meet the requirement of financing, land management rights should be defined as usufructuary rights derived from land contractual management rights. Some scholars believe that if land management rights and land contractual management rights are characterized as usufructuary rights, there will be some contradictions between the legal nature of such rights and the principle of One Property One Right in the former property law, so land management rights should be characterized as obligatory rights. Some scholars believe that the land management rights set above the land contractual management rights should be defined as the real rights (more than five years) or the obligatory rights (less than five years) respectively with the five-year limit as the boundary.From the perspective of normative interpretation, the Civil Code finally adopts the legislative way of the nature of obligatory rights to land management rights. This is embodied in article 339 of the Civil Code, ‘A person with the right to contractual management of land may decide on his own to transfer the right to management of land to others by leasing, contributing it as shares, or other means in accordance with law’, that is, the generation of the land management rights is benefited from leasing, contributing it as shares, or other means of transfer of the land contractual management rights. After all, leasing and buying shares belong to the obligatory rights of land contractual management rights, and the resulting land management rights should be included in the category of obligatory rights, and it is difficult to generate the usufructuary property of land management rights. In contrast, the exchange and alienation of the land contractual management rights are part of the real right transfer, which will cause the overall change of the land contractual management rights, but will not separate the new land management rights. In addition, if a usufructuary property of land management right is established, the problem of how to deal with the system relationship of land contractual management rights with almost the same content will inevitably arise in the system construction.On the one hand, the land management rights arising from the lease of the land contractual management rights should be included in the category of obligatory rights. When leasing the land contractual management right, peasant household leases the contracted land to others for cultivation, and the lessee pays the rent as agreed in the lease contract and obtains the land contractual management right. Accordingly, the lessee became the person who has the right to management of that land. According to the theory of civil law, leasing belongs to the category of obligatory rights, which can be realized through lease contracts. In this form of transfer, the relationship between the land contractual management right and the collective ownership of land is not affected, and the usufructuary property of the land contractual management right remains unchanged. The new owner of the land management right acquires the obligatory right in the lease contract, rather than the usufructuary right.On the other hand, the land management rights arising from the shareholding of land contractual management rights should also be defined as obligatory rights. When the land contractual management right is put into shares, peasant households take the rights as equity and voluntarily engage in agricultural cooperative production and operation. At the same time, households have not lost the land contractual management rights of farmland, but the land management rights have been generated by the land contractual management rights, which have been actually enjoyed by rural cooperatives or joint-stock enterprises. The land management rights generated by taking shares in accordance with the land contractual management rights have not changed the original land contract management relationship, which has the characteristics of relativity and temporality, and belongs to the category of obligatory rights. Therefore, the legal effect of shareholding of land contractual management rights is similar to that of leasing, but different from the latter, after shareholding, households can still produce and operate on the cooperative land voluntarily and jointly engaged in cooperative production and operation.Therefore, even if the land contractual management rights are leased out or put into shares to generate land management rights, it does not result in the loss of land contractual management rights. In other words, farmers are still the subjects of the land contractual management rights, but they do not directly manage the land during the period of land management right, and their possession of the land is changed from direct possession to indirect possession, and the direct occupant is the owner of the land management right.Different from leasing and shareholding, the alienation of land contractual management rights is essentially a way of real right transfer, that is, the land contractual management rights are completely transferred to others. This kind of transfer of land contractual management rights does not generate any new land management rights, but it will cause farmers to break away from the original contractual management relationship. After the transfer, the original land contractual management relationship between peasant households and the collective will be terminated, and the peasant households will transfer their original land contractual management rights to others, who will become the new subject of land contractual management rights and the right holder will change. Therefore, the transfer of land contractual management rights does not generate new land management rights, and there is no need to determine the nature of land management rights. Similar to alienation, the exchange of land contractual management rights also belongs to the scope of real right transfer. The exchange of previous land contractual management rights between the parties is part of the barter transfer. There are no new land management rights, but only the change of the right subject.It must be emphasized that whether the land contractual management rights are transferred or whether the land management rights can be generated should all respect the farmers’ own will, instead of adopting forced transfer of cutting at one stroke in dealing with them. According to article 339 of the Civil Code, when the land management right is transferred to others through leasing, contributing it as shares or other means, the inner will of the owner of the land contractual management right must be followed. Farmers are subjects of the right to land contractual management, which is contracted by the family as the unit, rather than dividing this right into the shares of individual members. Accordingly, to meet the need of the assertion of the farmers’ rights and interests, it is unreasonable to compulsorily take back the contracted land because of going into town (or going to school, joining the army, working and other reasons). In this sense, when there is no transfer of contracted land management rights, ‘separation of two rights’ and ‘separation of three rights’ of contracted land will continue to coexist for a long time. In fact, the right structure of ‘separation of two rights’ of contracted land is reflected in the norms of articles 330 to 338 of the Civil Code. This is also an important reason to retain the concept and appellation of land contractual management rights.In the case of reserving the right to contractual management of land, no matter how the farmers use their rights, such as transfer land contractual management rights to others, or manage the land by their own, they still can take the rights in their hands. And it is also the basis for the right of claim for the legal liability like returning the contracted land. According to the recovery principle of real right, the complete land contractual management rights will naturally bounce back to the owner of the land contract management rights after the expiration of the circulation period.IV. THE SPECIFIC APPLICATION OF CONTRACTED LAND ‘SEPARATION OF THREE RIGHTS’ SYSTEMWith the completion of the compilation of the Civil Code, which is an important symbolic project of the rule of law, the focus of the academic circle should be shifted from the legislative theory to the interpretation theory. Among them, the specific application of the new agricultural land right system of ‘separation of three rights’ in contracted land in the Civil Code, including the right structure of land management rights, land contractual management rights and financing guarantee of land management rights, all need to be explained from the perspective of interpretation.A. The System Structure of Land Management Right and Its TransferThe transformation of the contracted land right system from the separation of ‘collective ownership of rural land and contractual management rights of rural households’ to the separation of ‘collective ownership of rural land, land contractual management rights of rural households and land contractual management rights of new operating entities’ is conducive to responding to the diversified needs of agricultural land management. Among them, for the new right types in the structure of ‘separation of three rights’ of the contracted land, it is necessary to explain the subject, object, acquisition, content, term and other issues of land management right from the perspective of interpretation theory.Firstly, as far as the subject of rights is concerned, the subject of the right to management of land can get rid of the limitation of peasant household identity attribute and even expand to the scope of the whole civil subject. As the civil subject, natural person, legal person and unincorporated organization can all become the subjects of land management rights. Large rural grain growers, agricultural join stock companies, limited liability companies and agricultural cooperatives may become new management subjects. Farmers can more freely choose to hand over the right to management of the land to others by exercising the contractual management right of land.Secondly, as far as the object of right is concerned, the object of land management right should point to land, that is, contracted land. Under the ‘separation of three rights’ right system of contracted land, the object of rural collective ownership, peasant households’ land contractual management right and the land management right of new operating subjects all point to the contracted land, forming the identity of object direction.Thirdly, in terms of right acquisition, the acquisition of land management right includes both the way to conclude the land contractual management right transfer contracts, and the subsequent acquisition of re-transfer of the land management right. In principle, land management right can be defined as the general term of the farmland utilization right obtained by the third party according to the transfer contract.Fourthly, in terms of the content of the right, the owner of the land management right can possess, use and benefit from the contracted land. No matter what method is adopted to acquire the right to management of land, the parties should conclude a contract. The rights and obligations between the parties, especially the content of the management rights, will be determined mainly by the land management contract.Fifthly, in terms of right using, land management right, as a pure property right, is free from the limitation of identity attribute. In principle, it can be freely transferred and guaranteed in the market for financing, and has more freedom than land contractual management right. However, in the exercise of the land management right, the contracted land should be strictly used for agricultural purposes, to prevent the occurrence of the non-grain and non-agricultural phenomenon. Particularly, the use of contracted land for non-agricultural construction should be prohibited.Sixthly, as for the term of the right, the land contractual management right shall remain unchanged for a long time, but the term of the land management right shall be limited, which shall not exceed the remaining term of the former.The free transfer of land management rights is the key to implementing the policy of separating the three rights of farmland. And it is also the key to improve the efficiency of agricultural production, and the hinge of the whole farmland ‘separation of three rights’ reform. Under the ‘separation of three rights’ system, the land management rights that have been removed from the status attribute can be transferred into the market and used as financing guarantee, which highlights the property right attribute of the new agricultural land rights such as land management rights and contributes to the emergence of new agricultural land subjects.The effect of the marketing of land management rights should be tested by empirical evidence, and the system design should conform to the legal logic. Land management rights have been freed from the bondage of peasant households’ identity, and the subject of rights is not limited to peasant households. They should be characterized as pure property rights, which can be transferred into the market, so as to promote the realization of the appropriately scaled operation goal of contracted land. One of the objectives of the reform of ‘separation of three rights’ of agricultural land is to give stable, full and guaranteed land management rights to the persons subjected to the rights. In judicial practice, we should actively promote the transfer of land management rights to new operating entities such as large grain farmers, family farms, agricultural cooperatives and agricultural stock companies. At the same time, develop the rural collective economy and improve the level of modernization of agricultural production by contributing the land management rights as shares.Through the application of the ‘separation of three rights’ system of contracted land, the transfer of land management rights can be guided successfully, new operating subjects can be cultivated, the financing guarantee function of contracted land can be released, the sleeping contracted land resources can be activated, and farmers’ property income can be increased. In the case of the creation of land management rights, the separation of social security function and property control function of the land contractual management rights will not weaken the survival guarantee function of collective land for farmers, but give this guarantee mode a richer connotation, that is, to provide farmers with security through market transactions into property income.B. The Realization Mechanism of Mortgage Right of Land Contractual Management RightSolving farmers’ financing difficulties is a significant point of the legal reform of ‘separation of three rights’ of the contracted land. An important goal of the policy of ‘separation of three rights’ is to fully release the property value and realize the function of production factors of the land rights by activating the land management rights. After the implementation of the ‘separation of three rights’ of contracted land, the contractor can either set up the mortgage right with the contracted management rights which act as essentially usufructuary rights to solve the difficulties in farmland financing, or set up the security rights on the land management rights by the transferee. This means that the farmland financing guarantee not only refers to the financing guarantee of the transferee’s transfer of the land management rights, but also includes the guarantee of the land contractual management rights enjoyed by farmers. Therefore, it is necessary to pay attention to the realization of land contractual management rights and mortgage right of land management rights so as to prevent farmers from losing their land. After all, in the realization of a mortgage, there might be the result of land contractual management rights or land management rights change. It needs to study the transfer of land management rights, land contractual management rights, mortgage rights of land management rights and other specific measures.As a crucial type of usufructuary rights, land contractual management rights should contain mortgageable factors in terms of the realization of the function of the right. At present, the mortgage of land contractual management right has been allowed in the Civil Code system. How to prevent farmers from losing their land when the mortgage right is realized? In accordance with subparagraph (2) of the first paragraph of article 184 in the former Property Law, land contractual management right cannot be mortgaged, which was actually a restriction imposed by the law to guarantee the basic living conditions of farmers. Therefore, it is necessary to explore the way to realize the mortgage right of land contractual management right so as to prevent farmers from losing their land due to the realization of the mortgage right.In order to change the plight of farmers’ financing difficulties and lack of collateral, article 399 of the Civil Code changed subparagraph (2) of the first paragraph of article 184 of the former Property Law, and no longer prohibited the mortgage of the right to the use of cultivated land. It means that land contractual management rights can be used as the object of the mortgage. In addition, according to subparagraph (1) of the first paragraph of article 47 of the Law on the Contracting of Rural Land, the contractor can use the land management right of the contracted land to secure financing guarantee from financial institutions. As to this subparagraph, it should be understood as the financing guarantee of land contracting and management rights. Since there is no transfer of land contractual management rights at this time, no new independent land management rights have been created, not to mention the use of land management rights to secure financing.While realizing the mortgage right of the land contractual management right, it is obvious that the measures such as discount, auction and selling off of the land contractual management right should not be applied, otherwise the contracting party will lose the land contractual management right, contrary to the reform goal of stabilizing rural households’ land contractual management right under the policy of ‘separation of three rights’. Therefore, the way of realizing mortgage right can be innovated, that is, compulsorily managing the land contractual management right. The so-called compulsory management refers to the system in which the executing organ manages the executed real estate entrusted to the administrator and pays off the obligatory rights with the proceeds obtained. The realization of the mortgage of the land contractual management right by the contractor in the way of compulsory management does not change the price of the land contractual management right, but only enables the manager to obtain the land management right. Through compulsory management, the owner of the land contractual management right can not only retain the right, but also pay off the debt effectively.When the mortgage right of the land contractual management right is realized, the contractor and other operating subjects should set up new land management right on the contracted land in the way of compulsory management according to the right derivation rule of ‘separation of three rights’, and pay off the debt with the land use fee payable by the land management right owner, thus eliminating the relationship of joint and several claims and obligations. On the surface, the contractor has lost the right to operate the contracted land, and the newly established right holder has replaced its position to operate the land. It seems that the right to operate has been transferred. However, it should be noted that the land management right here can only be generated when the security right is realized, and its subject can only be a third party other than the contractor. In this way, the conflict between the social security function contained in the land contractual management right and the production factor function carried by it can be resolved. That is to say, in the realization of the security right, it is not to change the price of the land contractual management right, but to make the creditor’s right of the mortgagee be paid by means of compulsory management or compulsory contracting.In order to prevent farmers from losing their land, when the mortgage of the land contractual management right is realized, the transfer price or operating income of the land management right can be paid in priority. In other words, this way is different from the sale, auction or discount of the land contractual management rights. The reason is that when applying the ‘separation of three rights’ system of contracted land, we must adhere to the principle of not interfering with the land contractual management rights of existing farmers, and we must earnestly implement the guiding ideology of the principle of keeping the land contracted relationship of farmers unchanged for a long time put forward by the central committee of the Communist Party of China.C. The Realization Mechanism of Mortgage Right of Land Management RightAfter the land management right is defined as a pure property right, there is no reason to limit the mortgage by law because it does not bear the factors of farmers’ survival guarantee. In order to make the contracted land produce greater benefits, it should be endowed with the function of the mortgage. In advance of promulgating the Civil Code, article 47 of the newly revised Rural Land Contract Law stipulated the regulation of land management rights’ financing guarantee, Rural Land Contract Law did not define the legal form of land management rights’ financing guarantee clearly, but it ruled that ‘land management rights’ financing guarantee measures shall be formulated by the relevant departments of the State Council’. It is not conducive for the article to be practiced or applied. At present, article 381 of the Civil Code has clearly stipulated that land management right can be mortgaged.According to article 47(4) of the Rural Land Contract Law, the right to formulate specific management right guarantee measures is granted to the relevant departments of the State Council. This leaves space for relevant departments to formulate relevant laws, regulations or normative documents. However, the relevant measures are still lacking. In practice now, how to evaluate the financing guarantee value of land management right, how to sign, perform and deal with the default of the financing guarantee contract, and how to realize the specific realization of land management right when the guarantee right is realized, these questions all need to be issued by the relevant departments from the operational level to provide guidance. The relevant departments should, on the basis of the current pilot measures and in combination with the practical experience of the pilot, promptly formulate the specific procedures and measures for financing guarantee of land management rights, so as to provide a more operable normative basis for judicial practice.At present, the mortgage of land management right is mainly a financing policy with the characteristics of policy benefit to agriculture. The purpose of the mortgage is mainly to provide financial support for agricultural production. The purpose of the loan funds is usually limited to planting, breeding, processing and circulation of agricultural products and other fields. Various localities have explored ways to ease financial risks, such as establishing mortgage loan risk compensation, policy-based guarantee companies to provide guarantees, encouraging insurance companies to innovate agricultural insurance products and developing guarantee insurance. Article 2 of the Interim Measures for the Trial Mortgage Loan for the Land Management Rights of Contracted Rural Land jointly issued by the China Banking Regulatory Commission (CBRC) and other four departments clearly defines the mortgagee as a banking financial institution. In the current situation, it is necessary to make this limitation. However, with the maturity of the rural market and the perfection of the mortgage system of land management rights, the scope of mortgagee can be gradually expanded by stages and steps.The purpose of setting a mortgage on land management right is to ensure the repayment of the debt of the owner of land management right. In view of the fact that the land management right has no identity attribute of the subject, the security right established by it should be able to be auctioned, sold off or discounted when it is finally realized. After all, in essence, land management right has got rid of the identity restriction of the subject of land contractual management right and belongs to the pure property right, which can be circulated in the market. On the premise of respecting the basic structure of the current land system, the separated and independent land management rights can strip away the overload function of the land contractual management rights, and even if the land management rights are transferred to others, the stability of the contracted management relationship can be maintained.The establishment of the right system of ‘separation of three rights’ for contracted land in the Civil Code indicates that the reform of China’s agricultural land legal system has developed from legislative theory to explanatory theory. The theory and system of private law have practical significance only when they are put into judicial practice. Therefore, the system of ‘separation of three rights’ of contracted land will not lose its value of discussion due to the completion of the Civil Code. On the contrary, it is more necessary to start from the interpretation theory to provide the private law system guarantee for promoting the implementation of rural revitalization strategy. Under the system of ‘separation of three rights’, the land contractual management right is a usufructuary right derived from the collective ownership of land, while the land management right arises from the transfer of the land contractual management right. The legal nature of land management right should be defined as obligatory right. Leasing and contributing it as shares of the land contractual management right both belong to the obligatory right transfer, and the resulting land management right should be included in the category of obligatory right. On the other hand, the exchange and transfer of the land contractual rights belong to the transfer of real rights, which will lead to the overall change of the land contractual management rights, but will not separate the new land management rights. In the application of the Civil Code, we should try to avoid the negative impact on peasant households’ land contractual management rights. Both the land contractual management rights and the land management rights can be taken as the object of mortgage, which means that the contracted land is no longer confined in the hands of peasant households and removes the obstacles for the realization of financing guarantee of contracted land. The realization of the mortgage right with the land contractual management rights as the object can adopt the form of compulsory management to protect the realization of the obligatory right and prevent the farmers from losing their land. The realization of mortgage with the land management rights as the object can be directly applied to the realization rules of real right of security, and then the purpose of financing guarantee can be realized. The ‘separation of three rights’ system of contracted land established in the Civil Code is conducive to promoting the transfer of the land management rights and realizing the goals of large-scale, high-efficiency and modernization of agricultural production, thus promoting the implementation of rural revitalization strategy.
