中國 農村土地受給經營權에 관한 법적 검토

Abstract

Establishing a perfect socialist economy system has always been the purpose of the economic system reform in China. Three important resources to constitute the productivity are labor force, capital, and land, which also called three factors. The sign of the final formation of the market economy is that these three factors of productivity are allocated through market mechanisms in the main part. Property Law in China recognizes the property nature of the right to land contractual management, and treats it as an independent usufructuary property rights. Considering from the history and specification perspective, the household contractual management rights have the nature of rights to membership. What’s more, the substantive rights of the subject should be a member of collective economic organization, and the form of the subject should be individual farmers. In short, the right should be an equal enjoyment of rights for each member of the collective economic organization in nature. Household contractual management rights are one of the main forms of the rights of rural land contractual management. The subject of contractual management rights will decide the profit ownership of the rights, and it will affect its rights to change the form. The circulation problems of the rights of rural land contractual management has became a hot research topic in current legal theory. Therefore, the development of socialist market economic in depth will depend on the formation of a perfect rural land circulation market, so as to promote a reasonable circulation and effective allocation of agricultural production factors. The orderly circulation mechanisms of rights of rural land contractual management are both related to the realization of the vital interests of farmers, but also related to agricultural production, rural reform, development and stabilization. A distinction should be made between the creditor behavior and the behavior of real right to be discussed, while we improve the subject of the rural land contractual system. For the behavior of bond disposition like the subcontract, lease which does not change the subjects of the contracts, we should respect the freedom principle of contract, recognize it and protect it. Meanwhile, for the behavior of disposition of property rights which changes the subject of rights such as, transfer, exchange, and shares, we should support it on the premise that the rural social security has been perfected and the social security function inherent in the land management right has been stripped. The legal system of rural land contractual management rights about transferring is still not perfect. Consequently， the thesis argues that the legal system should be perfect though two aspects: on one hand, from the perfect start of the right of its own, strengthening the real right attribute of contractual right of the rural land, and bestowing complete land title on the farmers; on the other hand, from the improvement of the system, improving the registration system of the rural land assignment and the compensation mechanism of the rural land expropriation, and establishing a sound market mechanism for the rural transferring operation.