[memory]

The first is the scope of application of the rural land contract law.

Article 2 of the Rural Land Contract Law stipulates: "The rural land mentioned in this Law refers to cultivated land, forest land, grassland and other land that are collectively owned by farmers and owned by the state and used for agriculture according to law." This provision has two meanings: First, the rural land contract law regulates and adjusts rural land. But not all rural land, but land owned by farmers collectively and land owned by the state and used by farmers collectively according to law. Second, the use of these lands is cultivated land, woodland, grassland and other land used for agriculture according to law.

According to the rural land contract law, barren hills, gullies, hills and beaches are also within the adjustment scope of this law. It is an innovation of rural land system in China to manage and develop barren hills, gullies, hills and beaches through contracting. For more than a decade, the broad masses of peasants and social forces have actively managed and developed the "four wastes" through various forms. The contracted management and development of "three wastes" covers an area of nearly 80 million mu in the form of national bidding, auction and public consultation, and good benefits have been achieved. The Rural Land Contract Law summarizes the practical experience of contracting to control the "four wastes", and stipulates that barren hills, gullies, hills and beaches can be contracted by means of bidding, auction and public consultation.

Second, the characteristics of household contract.

1, the contractor is a special subject. According to the rural land contract law, in the household contract mode, the employer is a rural collective economic organization or a villagers' autonomous organization, and the contractor is a farmer of the collective economic organization. In other ways, the contractor may be a member of the collective economic organization or a unit or individual outside the collective economic organization.

2. The contractual relationship has a long term. Compared with other contracting methods, the duration of household contracting is longer. In order to stabilize rural land in contract relationship, the Rural Land Contract Law stipulates that the household contract period of cultivated land, grassland and woodland is 30 years, 30 to 50 years and 30 to 70 years respectively. In other ways, the term of the contract shall be agreed by both parties through the contract.

3. The contractual management right has property rights. The legislative purpose of the Rural Land Contract Law is to give farmers long-term and guaranteed land use rights. In the provisions of this law on the right to contracted household management, institutional arrangements are made with the concept of usufructuary right. First of all, the way to obtain the right to contract management is stipulated by law. Second, the content of the contractual management right is stipulated by law, not decided by the parties. Third, the contractor can directly exercise the right to contract management and get benefits. Fourthly, the contractor enjoys the right of claim based on the contractual management right, and has the right to exclude others' interference in the exercise of the contractual management right, so that the contractual management right has the nature of a worldwide right. The rights and obligations of the contracting parties in other aspects shall be determined by both parties through consultation.

4. The applicable principles are different. Family contracting is based on the principle of fairness, and other contracting methods give priority to efficiency and give consideration to fairness.

[understanding]

The first is the legislative purpose of the rural land contract law.

1. Maintain the long-term stability of rural land in contract relationship.

2, standardize and adjust the land contract management relationship.

3. Guarantee and promote the development of agriculture and rural economy.

The second is the principle of rural land contract.

1, adhere to the principle of socialist collective ownership of land unchanged.

"Rural Land Contract Law" stipulates that "after rural land contract, the nature of land ownership remains unchanged. The contracted land may not be bought or sold. "

This principle has two meanings, one is to adhere to public ownership. The second is to adhere to the long-standing ownership structure of "three-level ownership and team-oriented" in rural areas of China. No unit or individual may use contracted land to level the land of other farmers' collectives.

2. The principle of protecting rural land and long-term stability in contract relationship.

The Rural Land Contract Law implements this principle from three aspects: First, it fully stipulates the rights of contractors. Second, the term of the right to contracted management of rural land is set long enough. The third is the nature of giving rural land families the right to contracted management.

3, the principle of protecting farmers' land contract rights.

This principle, first, members of rural collective economic organizations have the right to contract rural land contracted by their collective economic organizations according to law, and no organization or individual may deprive them or illegally restrict them. Second, men and women enjoy equal land contracting rights.

[Thinking]

? Why should we formulate the rural land contract law?

? Characteristics of household contract.

Section 2 Protection of Household Contractual Management Right

[memory]

I. Provisions on the protection of women's right to contracted management of land.

The Rural Land Contract Law stipulates in principle in Article 6 of the General Provisions that women and men enjoy equal rights in rural land contract. The contract shall protect the legitimate rights and interests of women, and no organization or individual may deprive or infringe upon women's right to contracted land management.

In order to protect married, divorced and widowed women's right to land contract management, Article 30 of the Rural Land Contract Law has made special provisions on this. According to this article, it is necessary to ensure that married women in rural areas have contracted land. Specifically, it can be divided into the following two situations: first, if a woman marries, the place where she marries should give priority to solving the problem of women's land contractual management right in accordance with relevant regulations, and before solving it, the contractor at the place where the married woman's family is located may not forcibly take back her original contracted land. Second, if the woman is divorced or widowed, if the woman still lives in her original place of residence, the original place of residence should ensure that the woman has contracted land; If a woman does not live in her original place of residence after divorce or widowhood, but moves to another place, the village or villagers' group where the new place of residence is located shall arrange a contracted land for the woman. Before the settlement, the contractor of the woman's original residence reserves the right to contracted management of the land and may not take back the contracted land.

Second, the rights of the contractor.

1, contracted land use right

The actual right to use contracted land. The contractor has the right to use the contracted land according to law, cultivate on the contracted land and engage in agricultural production and business activities such as planting, forestry, animal husbandry and fishery. This right is actually the right to occupy the contracted land.

2, production and operation autonomy

The right of the contractor to enjoy the autonomy of production and operation means that the contractor has the right to organize agricultural production and operation activities independently on the contracted land according to law, decide what crops to plant, how much area to plant, or arrange what planting and breeding projects, without interference from other organizations (including the employer) and individuals. As long as the contractor's production and business activities do not violate the law, other organizations, especially the employer, shall not interfere at will, let alone force the contractor to engage in or not engage in certain production and business activities against the contractor's wishes.

3. Right to dispose of products

The contractor has the right to dispose of the products produced by itself. The quantity, price and sales method of the products shall be determined by the contractor and the buyer through consultation, and the employer shall not interfere. In practice, in some places, in order to solve the problem of selling agricultural products or get better prices, it is a good way to help farmers sell agricultural products through orders and unified sales contracts, but the wishes of contractors should be fully respected and farmers should not be forced to join.

4. Right to income

The right to income. The legitimate income generated on the contracted land, including agricultural product sales income, land contractual management right transfer income and other income, shall be owned by the contractor, and no other organization or individual may occupy or deprive it. In addition, if the contractor increases investment in contracted land and improves soil, etc. In order to improve the land production capacity, the contractor has the right to receive corresponding compensation when returning or transferring the contracted land management right during the contract period, and when the employer recovers the contracted land according to law.

5. Right to transfer the contracted management right of land

The Rural Land Contract Law also affirmed the contractor's right to independently transfer the land contractual management right in legal form. Article 10 of the law stipulates that the state protects contractors from voluntarily transferring the contracted management right of land with compensation according to law. Article 32 stipulates that the right to contracted management of land obtained through household contract can be transferred by subcontracting, leasing, exchange, transfer and shareholding in accordance with the law, voluntarily and with compensation. Article 34 stipulates more clearly that the main body of land contractual management right transfer is the contractor, and the contractor has the right to decide whether the land contractual management right is transferred and the form of transfer independently according to law. Article 36 stipulates that the proceeds from the transfer of land contractual management rights shall be owned by the contractor, and no organization or individual may intercept or withhold them without authorization. Article 43 stipulates that if the contractor invests in the contracted land to improve the land production capacity, the contractor has the right to receive corresponding compensation when the land contractual management right is transferred according to law. These regulations not only affirm that the right to land contractual management can be transferred according to law, but also clarify the specific transfer methods, which protect the contractor from transferring the right to land contractual management according to law and fully protect the rights and interests of the contractor.

6. Other legal rights of the contractor

According to the provisions of Article 16 of the Rural Land Contract Law, the contractor shall enjoy the following two rights in addition to the right to contracted management of land:

(1) According to Item (2) of Article 16 of the Rural Land Contract Law, if the contracted land is requisitioned and occupied according to law, the contractor has the right to obtain corresponding compensation. In order to protect cultivated land, the Land Management Law and other laws and regulations stipulate strict examination and approval procedures for land requisition and occupation, so as to prevent land requisition and occupation, especially cultivated land, at will.

(2) Other rights stipulated by laws and administrative regulations.

This is an all-encompassing clause. For example, if the employer or other organizations and individuals collect fees from the contracted land beyond the provisions of laws and regulations, the contractor has the right to refuse in accordance with the relevant provisions of the Agricultural Law.

The third is the rights and obligations of the employer.

1. According to Article 14 of the Rural Land Contract Law, the employer shall undertake the following obligations:

(1) Maintain the contractor's land contractual management right.

2. Respect the production and operation autonomy of the contractor.

(3) to provide services for contractors.

(4) Organizing the construction of agricultural infrastructure.

5. In addition to the above four obligations, the employer shall also undertake other obligations stipulated by laws and administrative regulations.

There are two points to be noted about the rights of the employer: First, at present, most provinces (autonomous regions and municipalities directly under the Central Government) in China have promulgated local laws and administrative regulations such as regulations on the management of agricultural contracts. Where the rights of the employer stipulated in these regulations and administrative regulations are different from those stipulated in Article 13 of the Rural Land Contract Law, the provisions of the Rural Land Contract Law shall apply. Second, Item (4) of Article 13 of the Rural Land Contract Law stipulates other rights of the employer stipulated by laws and administrative regulations, while local laws and administrative regulations cannot stipulate new rights for the employer.

2. Rights of employers

According to Article 13 of the Rural Land Contract Law, farmers' collective economic organizations, villagers' committees or villagers' groups, as contractors of rural land, enjoy the right to contract, the right to supervise, the right to claim and stop the contractor's destruction of contracted land and agricultural resources, and other rights stipulated by laws and administrative regulations. On the one hand, the employer exercises these rights in order to safeguard the collective land ownership and protect the land resources collectively owned by farmers; On the other hand, it can also be considered as safeguarding the land contractual management rights of other contractors of this collective economic organization.

Four, the main contents of the land contract.

Generally speaking, the contents of a land contract include:

1, the names of the employer and the contractor, and the names and addresses of the principal of the employer and the representative of the contractor;

2. Name, location, area and quality grade of the contracted land;

3, the contract period and start and end date;

4, the use of contracted land;

5, the rights and obligations of the employer and the contractor;

6. Liability for breach of contract.

According to the rural land contract law, land contract should be in written form. This contract shall come into force as of the date of establishment. After the contract came into effect, the contractor obtained the right to contract and manage the land. The local people's governments at or above the county level shall issue certificates such as land contractual management right certificates or forest right certificates to the contractors, and register and confirm the land contractual management right.

[understanding]

First, the term of rural land contractual management rights.

Article 20 of the Rural Land Contract Law has different provisions on the contract period of cultivated land, grassland and forest land. The contract period of cultivated land is 30 years, grassland is 30 to 50 years, and woodland is 30 to 70 years. With the approval of the administrative department of forestry in the State Council, the contract period of special tree forest land can be extended. The main reason for this distinction is that the investment income period of different types of land is quite different.

The second is the principle of not taking back the contracted land during the contract period.

1, the contracted land shall not be recovered during the contract period.

The first paragraph of Article 26 of the Rural Land Contract Law stipulates: "During the contract period, the employer shall not take back the contracted land." According to this regulation, except for the circumstances specified in the third paragraph of Article 26, during the contract period, the employer shall not take back the contractor's contracted land for any reason.

2. The contracted land can be recovered.

According to the third paragraph of Article 26 of the Rural Land Contract Law, during the contract period, if the whole family of the contractor moves into a city divided into districts and becomes non-agricultural registered permanent residence, it shall return the contracted cultivated land and grassland. If the contractor fails to return it, the employer may take it back.

Due to the long production cycle of forest land, in order to protect the enthusiasm of afforestation, this law stipulates that contracted forest land cannot be recovered. After the whole family of farmers who have contracted forest land move into cities with districts, they can transfer the contracted management right of land or continue to contract management.

3. Disposal of contracted land after farmers move into small towns.

1999 "opinions on promoting the healthy development of small towns" issued by the Central Committee of the Communist Party of China and the State Council clearly pointed out that farmers who have settled in towns can keep their contracted land management rights according to their own wishes, and also allow paid circulation according to law.

Three, the contract period shall not adjust the principle of contracted land.

1. The contracted land shall not be adjusted during the contract period.

The first paragraph of Article 27 of the Rural Land Contract Law stipulates: "During the contract period, the employer shall not adjust the contracted land." Since the implementation of household contract management system in rural areas, the Party and the state have repeatedly stressed the need to stabilize rural land in contract relationship. However, in some places, the land of contract relationship is still unstable. The main reason is that during the contract period, the employer frequently adjusts the contracted land through administrative means, which has caused people's instability and brought many problems, and farmers have great opinions.

2. Circumstances and procedures for allowing individual adjustments

As a supplement to the principle that "the employer shall not adjust the contracted land during the contract period", the second paragraph of Article 27 of the Rural Land Contract Law stipulates that during the contract period, if the cultivated land and grassland contracted by individual farmers are seriously damaged due to natural disasters and other special circumstances, it must be approved by more than two-thirds of the members of the villagers' meeting or more than two-thirds of the villagers' representatives of the collective economic organization, and reported to the administrative department of agriculture of the township (town) people's government and the county-level people's government for approval.

3. Land available for adjustment

Article 28 of the Rural Land Contract Law stipulates that during the contract period, the following land shall be used to adjust the contracted land or contracted to the new population:

(1) Mobile land reserved by collective economic organizations according to law.

(2) Newly cultivated land reclaimed according to law.

(three) the land voluntarily returned by the contractor according to law.

4. The contractor can voluntarily give up the contracted land.

Article 29 of the Rural Land Contract Law stipulates that during the contract period, the contractor may voluntarily return the contracted land to the employer. It should be noted that the "contracted land" here includes cultivated land, grassland and woodland. If the contractor returns it voluntarily, the employer shall accept it and use it to adjust the contracted land or contract it to the new population in accordance with the regulations to solve the contradiction between people and land during the contract period.

Two requirements for the contractor to voluntarily return the contracted land: first, notify the employer in writing six months in advance; Second, during the contract period, the contracted land shall not be claimed.

However, if the contractor voluntarily returns the contracted land, it shall not claim the contracted land again during the contract period, which will not affect the land contracting right enjoyed by the contractor according to Article 5 of the Rural Land Contract Law. In the next round of contracting, they still have the right to contract land according to law.

Fourth, the "mobile" policies and laws.

"Floating land" originally refers to some places in the implementation of the first round of land contracting process, in order to solve the contradiction between people and land, reduce the number of contracted land adjustments, or solve the problem of collective economic organizations' expenses, some land will be reserved and managed by collective economic organizations or through bidding and contracting. In the second round of contract signing, the document [1997]16 of the Central Office requires that the reserved "floating land" must be strictly controlled. Where there is no "floating land" at present, in principle, there should be no "floating land" where "floating land" has been reserved, which must be strictly controlled within 5% of the total cultivated land area and strictly used to solve the contradiction between people and land. The excess part shall be subcontracted to households according to the principle of fairness and reasonableness. Therefore, Article 63 of the Rural Land Contract Law, according to the spirit of the Central Committee mentioned above, "If motor land has been reserved before the implementation of this Law, the area of motor land shall not exceed 5% of the total cultivated land of this collective economic organization. If it is less than 5%, it is not allowed to increase the maneuvering space. " If no land for motor vehicles was left before the implementation of this Law, no land for motor vehicles shall be left after the implementation of this Law.

[Thinking]

? How does the land contract law stipulate women's right to land contract management?

? How to understand the term rural land contractual management right?

? Prohibitions and exceptions for the contractor to recover the contracted land.

? Prohibitions and exceptions for the employer to adjust the contracted land.

? Can the contractor give up the contracted land during the contract period?

? What aspects does the land contractual management right include?

? What are the rights and obligations of the employer in family contracting?

Section 3 Circulation of Household Contractual Management Right

[memory]

First, the concept and form of land contractual management right transfer.

The circulation of land contractual management right refers to the behavior that the contractor who has obtained the contractual management right of rural land voluntarily transfers part or all of its contractual management right to a third party with compensation according to law.

According to the provisions of the rural land contract law, the transfer of land contractual management rights can be subcontracted, leased, exchanged, transferred or otherwise.

Subcontracting means that the contractor transfers part or all of the land contractual management right to other members of the collective economic organization within a certain period of time, and the transferee undertakes the agreed obligations to the contractor, and the contract relationship between the contractor and the employer remains unchanged.

Lease means that the contractor transfers part or all of the land contractual management right to a third person outside the collective economic organization within a certain period of time, and the third person assumes the agreed obligations to the contractor as the transferee, and the contractual relationship between the contractor and the employer remains unchanged.

Swap means that the contractor swaps the contracted management rights of land belonging to the same collective economic organization for the convenience of farming or their own needs.

Circulation means that with the consent of the employer, the contractor transfers all or part of the contracted management right of the land to other farmers engaged in agricultural production and operation, and the farmers and the employer establish a new contract relationship, and the original contractor and the employer terminate the contract relationship on the land.

Two, the types of land rights registration system.

Whether the change of land ownership must be registered or not, as far as the effectiveness of registration is concerned, the registration systems in various countries are generally divided into three categories. 1, registration essentials. Also known as registration validity, that is, the change of land rights can only take effect if it is registered by the registration authority according to law. If it is not registered, it has no legal effect. Therefore, all parties concerned must register. Germany is the representative of registered validity.

2. The principle of land certificate delivery, also known as torrance registration. That is, at the time of initial registration, the registration authority determines the state of land rights according to certain procedures and makes land vouchers. When transferring land rights, the parties concerned shall make a transfer certificate and submit it to the registration authority together with the land certificate. After examination, the registration authority records the transfer of land rights in the register, delivers the new certificate to the transferee or records the transfer of rights in the original certificate, and the third party can clarify the status of land rights from the land certificate. Most common law countries adopt this system.

3. Show hostility. Changes in land rights have legal effect according to the wishes of the parties. After the transaction is completed, the land rights will be transferred. The parties may or may not register, but if they do not register, their rights shall not be against a bona fide third party. Japan, France and other countries adopt this system.

The third is the characteristics of subcontracting and leasing of land contractual management rights.

1. The contractor transfers part or all of the contracted land management right to a third party within a certain period of time. The third person here can be a member of a collective economic organization or a unit or individual outside the collective economic organization. The contractor may transfer all or part of the land contractual management right. The transfer time is shorter than the transfer time.

2. After the land contractual management right is subcontracted and leased, the contractual relationship between the contractor and the employer remains unchanged, and the contractor still performs the contractual obligations to the employer, including the obligation to bear relevant taxes and fees according to law. However, if the subcontract or lease contract stipulates that the relevant taxes and fees shall be borne by the transferee, it may be borne by the transferee as agreed.

Four, on the exchange of land contractual management rights should pay attention to the problem.

1. Exchange, as a form of land contractual management right transfer, must adhere to the voluntary and consensus of both parties. Collective economic organizations may suggest or coordinate with the contractors, but shall not force either party to agree to the exchange.

2. The exchange of land contractual management rights is limited to the fact that the contracted land belongs to the same collective economic organization, that is, both parties should be farmers of the collective economic organization. The exchange of contracted management rights of contracted land that does not belong to the same collective economic organization shall be handled in accordance with the provisions of the Land Management Law and other relevant laws.

3. After the exchange of land contractual management rights, if the parties request registration, they may apply to the people's government at the county level for registration, and register the land contractual management rights after the exchange to the names of both parties. Without registration, you cannot fight against a third person.

Five, restrictions on the transfer of land contractual management rights.

1, the contractor has a stable non-agricultural occupation or a stable source of income;

2. It must be approved by the employer;

3. The transferee shall be a farmer engaged in agricultural production and operation.

Six, the characteristics of land contractual management rights.

1, the main body of shares is limited to farmers, which is a voluntary alliance among farmers, that is, farmers each own shares with their land contractual management rights.

The purpose of holding shares is to expand business and develop agricultural economy, not to engage in other industrial and commercial activities.

3. The way to buy shares is to engage in cooperative production, not other enterprise organizations.

[understanding]

First, the principle of circulation.

1, the principle of equal consultation and voluntary compensation;

2. Land ownership and agricultural use shall not be changed;

3. The circulation period is limited to the contract period;

4. The transferee must have the ability to manage agriculture;

5. Members of this collective economic organization enjoy priority under the same conditions.

Two, the main contents of the contract for the transfer of land contractual management rights.

According to the provisions of the Rural Land Contract Law, if the land contractual management right is transferred, both parties shall sign a written contract, and the contents of the transfer contract generally include: the names and residences of both parties; The name, location, area and quality grade of the land to be sold; Time limit and start and end date of circulation; The use of the transferred land; Rights and obligations of both parties; Transfer price and payment method; Liability for breach of contract, etc. It should be noted that the circulation contract must be signed in writing.

[Thinking]

? What principles should be followed in the transfer of land contractual management rights?

? How to understand the registration and effectiveness of the transfer of land contractual management rights?

Section 4 Other contracting methods

Characteristics of other contracting methods.

Compared with household contracting, other contracting methods have the following characteristics:

1. The contractor may be a member of a collective economic organization or a member other than a collective economic organization. Under the same conditions, members of this collective economic organization have the priority to contract.

If the contract is awarded to a unit or individual other than the collective economic organization, it must follow legal procedures, that is, it should be approved by more than two-thirds of the members of the villagers' meeting of the members of the collective economic organization or more than two-thirds of the villagers' representatives in advance, and reported to the township (town) people's government for approval.

2. The contractor can be a farmer's family, unit, joint household or individual.

3. The contracting method is not equal to everyone, but bidding, auction or public consultation, and the employer determines the contractor according to the principle of "efficiency first and fairness".

4. The contracted land is mainly "four wastes" and land unsuitable for family contracting, such as gardens, tea gardens, mulberry gardens and aquaculture water surfaces.

[understanding]

First, the difference between other contracting methods and household contracting methods.

According to the provisions of the Rural Land Contract Law and local practice, there are three main differences in the circulation mode between the land contractual management right obtained by contracting the "four wastes" and other land in other ways and the land contractual management right obtained by household contract.

1, there is no subcontracting circulation mode. This is mainly because both the contractor and the transferee of the transfer of land contractual management right obtained by other means can be units and individuals outside the collective economic organization, and there is no need to distinguish whether they are members of the collective economic organization. Subcontracting and leasing can be summarized as "leasing" circulation mode.

2. Increase the circulation mode of mortgage. Because the land contracted by other means is mainly "four barren" and other land, for most farmers, these land does not have the powerful social security function like cultivated land, forest land and grassland, so there is no need to worry that the contractor will lose his living security if he cannot repay the loan on time after mortgage. Moreover, these lands are contracted by market-oriented methods such as bidding, auction and public consultation in accordance with the principle of "efficiency first and fairness second". The price paid by the contractor is basically determined according to the market principle, and the contractor should be allowed to follow the market principle in obtaining the land contractual management right according to law.

3. There are more ways to buy stocks. Article 42 of the Rural Land Contract Law stipulates that the shareholding scope of household contract is limited to agricultural cooperative production. Although literally, they are all "shares", according to the practice of "four shortages" contracting in some places, the specific ways of contracting land contractual management rights to become shares by other means can be more flexible and accept the principle of market circulation. For example, the object of holding shares can be not limited to contractors, but other units and individuals can also become shareholders; The purpose of holding shares is not necessarily limited to agricultural cooperative production, but also can participate in joint ventures. In this regard, the State Council General Office 1999 issued the "Notice on Further Improving the Management and Development of Rural" Four Wastes "Resources, which pointed out that the right to use" Four Wastes "(land contractual management right) is protected by law and enjoys the rights of inheritance, transfer (lease), mortgage or participation in joint ventures according to law.

In addition, in other contracting methods, if the contractor dies, the contracted income due to him shall be inherited according to the provisions of the inheritance law; During the contract period, his successor may continue to contract.

Two, "rural land contract law" on the "four shortages".

The contract management of "three wastes" is the main content of other contracting methods.

For barren hills, gullies, hills, beaches and other "four barren" lands, in terms of specific contracting procedures, contracting operations can be carried out by means of bidding, auction and public consultation. , or after the contracted land management right is converted into shares and distributed to the members of the collective economic organization, it can be contracted or jointly operated.