Li Changjian
First, the necessary premise: a brief analysis of the relevant concepts of land contractual management rights.
Rural collective economic organizations in China implement a two-tier management system based on household contract management and combining unification and separation. The second paragraph of Article 3 of the Rural Land Contract Law stipulates: "Rural land is contracted by families within rural collective economic organizations, and rural land such as barren hills, gullies, hills and beaches that are not suitable for family contracting can be contracted by means of bidding, auction and public consultation." Obviously, there are two main types of rural land contract: one is household contract; Second, other contracting methods. At present, in theory and practice, land contracting right is often equal to land contracting management right, which confuses two different legal meanings and attributes, which is not conducive to "protecting the long-term stability of rural land in contract relationship by the state according to law" and "safeguarding the legitimate rights and interests of rural land contracting parties". Before discussing the inheritance of rural land contractual management right in China, it is necessary to distinguish two groups of concepts involved in rural collective economic management system.
(a) analysis 1: families and households
The surname comes from hunting. Tapirs are livestock. Building under the house is actually the origin of private property. With the concept of private property, there is a system of private property. The original meaning of family is vector family, which later applies to family. ..... Clans are kindred because people of similar ancestry, neighboring tribes and colleagues hunt or compete with each other. So we planted a flag to show our identification. Anyone with a banner is a family. [2] Generally speaking, sociology only refers to the living community with direct blood relationship as family. Whether it is a family or a family, it is based on blood relationship and in-laws relationship, and it has a strong patriarchal color. Household generally refers to a collection of several people living in the same house. In this sense, the extension and connotation of home is greater than that of household.
(B) Analysis 2: Farmers' right to land contract and farmers' right to land contract and management.
The right to land contract refers to the legal person, other organization and natural person who is legally enjoyed by the members of the rural collective economic organization contracted by the family (that is, farmers) and contracted by other means and enjoys the qualification of rural land contract according to authorization. Therefore, "farmers' right to contract land" (that is, farmers' right to contract) means that members of rural collective economic organizations who contract with their families (that is, farmers) are legally entitled to contract rural land contracted by rural collective economic organizations. The right to contracted management of farmers' land refers to the right of farmers of this rural collective economic organization to legally occupy rural land such as cultivated land, forest land and grassland owned and used by farmers collectively, use it for agricultural purposes such as planting, animal husbandry or aquaculture, and obtain income, as well as the right to dispose of the rights formed by contracting the rural land. The differences between the right to land contract contracted by family and the right to land contract management are as follows: the legal subject of the right to land contract is farmers, that is, the members of the contracting party; The main body of land contractual management right can only be farmers, that is, farmers within the contractor. Farmers' land contracting rights have the characteristics of community membership rights and cannot be deprived or illegally restricted; However, farmers' land contractual management rights can be deprived according to law, such as "contracted land is requisitioned and occupied according to law" and the land contractual management rights are eliminated; For another example, according to the third paragraph of Article 26 of the Rural Land Contract Law of People's Republic of China (PRC) (hereinafter referred to as the Rural Land Contract Law), "During the contract period, the contractor's whole family moved to a city with districts and became non-agricultural registered permanent residence", the contractor recovered the contracted cultivated land and grassland, and deprived the contractor of the right to land contractual management according to law. [ 1]
Two, the positive and negative theory and analysis of the inheritance of land contractual management right
Since 1980s, the academic circles have been debating whether the right to contracted management of land can be inherited. Those who hold a positive view think that the right to contracted management of land can be inherited, while those who hold a negative view do the opposite. On the nature of land contractual management right, there has been controversy in the theoretical circle, and two main opposing views have been formed, namely, the theory of property right and the theory of creditor's right. The reasons for holding the theory of real right are: the right to contracted management of land is protected by civil law; Land contractual management right is the right to directly use and control land; The right to contracted management of land is effective against the third party. The reasons for holding creditor's rights are: the right to contracted management of land is based on household contract; The right to contracted management of land should be retained under the condition of paying certain reciprocal obligations to the collective; The stability and circulation of land contractual management rights are restricted by collective organizations and collective land ownership [2]. As a result, there are two diametrically opposite views on whether the contracted management right of land can be inherited. The first viewpoint and reason that rural contracting right can be inherited is that rural contracting right is a kind of real right and a new type of usufructuary right. The rural contracted management right is the real right set on the land owned by the state or the collective, that is, the real right of others; Moreover, it is a usufructuary right aimed at the operation, possession, use and income of the contracted land. As the rural contracted management right is a kind of real right and a kind of property right, when the contractor dies during the contracting period, the contracted management right naturally becomes the inheritance subject, so the successor can inherit the contracted management right; The second view and reason that the rural contracting right cannot be inherited are mainly: in rural contracting, there is a contractual relationship between the employer and the contractor, which is terminated due to the death of one party (such as the contractor). The management right based on the contractual relationship belongs to non-property rights and does not belong to the scope of property inheritance, so this right cannot be inherited [3]. In fact, after careful analysis, the opposition between the two views is mainly reflected in the following aspects: first, whether the right to contracted management of land is a usufructuary right with the content of possession, use and income, or a creditor's right based on contractual relationship; Second, whether the land contractual management right is a property right or a non-property right.
Before discussing the author's point of view, it is necessary to discuss the inheritance of "rights" first. According to the inheritance law of our country, the object of inheritance needs to be inheritance. Article 3 of the Law of Succession of People's Republic of China (PRC) (hereinafter referred to as the Law of Succession) stipulates: "Heritage is the personal legal property left by a citizen at the time of his death, including: (1) the income of a citizen; (2) Houses, savings and daily necessities of citizens; (3) Citizens' trees, livestock and poultry; (4) Cultural relics and books and materials of citizens; (five) the means of production that the law allows citizens to own; (six) the property rights in the copyright and patent rights of citizens; (7) Other lawful properties of citizens. "According to common sense, the rural land contractual management right belongs to a kind of right, and the inheritance law does not stipulate the' right' that can be directly used as inheritance content. On the surface, what it refers to does not conform to the inheritance form and content required by the inheritance law, but a little careful analysis of its essence will reveal that the right to contracted management of rural land is aimed at the possession, use and income of land. Positive property rights with land property interests as the content. Whether a "right" can be inherited depends on whether it belongs to property rights and whether it has property attributes, rather than just literally distinguishing it.
The author believes that the right to contracted management of land should be regarded as the legal principle and legal basis for the entry into force of Article 4 of the Inheritance Law. The reason is: from the legal point of view, (1) the main body of rural contracting right is agricultural land. Although the ownership belongs to the state or rural collective economic organizations, the contractor does not own the ownership of agricultural land, but enjoys the right to use it, which is a usufructuary right. The contractor's operating income on this land that does not belong to him is a kind of private property, and he enjoys the ownership of this property. Therefore, the contracted land is not the private property of the contractor, which does not affect the successor of the contractor to inherit the contracting right. (2) Although the contracting right is based on the management autonomy generated by contract relationship, the content of this management autonomy is the property right with the purpose of land possession, use and income, so the real purpose of contract relationship is to enable the contractor to enjoy the property right of possession, use and control of the contracted land based on the management autonomy. From a legal point of view, there is actually no need to argue whether the contracted management right of land is a real right or a creditor's right to decide whether it can be inherited. The two rights themselves are not either-or opposites, but overlap to a certain extent, that is, there is a trend of "property rights and claims, claims and claims". What's more, the property law passed in 2007 stipulated the "land contractual management right" in the special chapter of "usufructuary right", which clarified the legal status of the land contractual management right and some specific problems of the land contractual management right. As early as June, 65438+September, 0985, Article 3 of the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the Law of Inheritance has stipulated: "Other lawful properties that citizens can inherit include securities and creditor's rights that are performed as property." Therefore, whether it is real right or creditor's right, as long as it has the property attribute and the object is property, it should be one of the inheritance contents of inheritance law. As mentioned above, the right to contracted management of land refers to land property and should be inherited.
At present, China's relevant laws do not explicitly stipulate that "the right to contracted management of land can be inherited", but only stipulate that "the contracted income due to it shall be inherited according to the provisions of the inheritance law" and "if the successor is allowed to continue contracting according to law, it shall be handled according to the contract". Prior to this, the "four barren" land not contracted by families in the Soil and Water Conservation Law 19 1 can be inherited and inherited. This provision can be said to be in line with the provisions of Article 4 of the Inheritance Law on the inheritance of land contractual management rights. However, Article 3 1 of the Rural Land Contract Law, which was implemented in 2003, stipulates that "the contractor's contracted income shall be inherited according to the provisions of the inheritance law." "If the contractor of forest land contracting dies, his successor may continue to contract during the contract period." And article 50 "non-family contracting mode": 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 can continue to contract. "This is the problem. Obviously, although the law has no restrictions on the inheritance of land contractual management rights obtained by non-family contracting, the inheritance of land contractual management rights obtained by family contracting is limited to forest rights, while other land contractual management rights other than forest rights are stipulated as only inheritance income. The author thinks that this regulation is unscientific and unfair. Today, China's laws have made it clear that the right to contracted management of land is a kind of property right. According to the spirit of Article 1 of the Inheritance Law, it should be made clear that the contracted land management rights can be inherited, that is, it is no longer necessary to distinguish which contracted land management rights can be inherited and which cannot be inherited. Because doing so will only lead to a departure from the purpose of article 1 of the Rural Land Contract Law, that is, "to give farmers long-term and guaranteed land use rights, safeguard the legitimate rights and interests of rural land contracting parties, and promote agricultural, rural economic development and rural social stability". Some people may think that "the contract right determined by general household contract (that is, the contract management right of cultivated land and grassland) emphasizes welfare and security. If the general contractual management right of land is allowed to inherit, it will harm the rights and interests of other members of the collective economic organization. "The author believes that allowing the general land contractual management right to inherit will not harm the rights and interests of other members of farmers' collective economic organizations in practice, otherwise it will be difficult to understand the phenomenon that some family members die in reality, while other relatives who are members of the contractor are planting collective land without contracting the land to the collective. On the contrary, allowing the general land contractual management right to inherit will be more conducive to reducing the cost of land recovery and re-contracting, because in practice, the changes of the dead population and the new population during the contracting period are irregular; It is more conducive to the free circulation of land resources and attracts the increase of land investment; Stimulate farmers' enthusiasm and stabilize rural economy.
Land contracted by other means, according to the provisions of Articles 44 and 50 of the Rural Land Contract Law of People's Republic of China (PRC), if the contractor contracts these four wasteland, such as barren hills, gullies, hills and beaches, the successor may continue to contract during the contract period. This regulation is to encourage wasteland management and make full use of land. However, in practice, the ownership of many "four wastes" is unclear, which leads to the irregular circulation of their right to use. For example, in some places, the auction of the right to use the "Four Wastes" was held under the condition that the ownership of the "Four Wastes" was unknown, which led to the unclear property right relationship between the land owners and users, and many state-owned land was sold as collective land by auction, resulting in the loss of state-owned land. Therefore, for the "four wasteland", we must first clarify the nature and ownership of the land. If it belongs to state-owned land, it should not be allowed to inherit and be nationalized. Fair and reasonable compensation should be given to the contracted business income of the contracted business entity on the land and the increased investment to improve the land production capacity, and this compensation can comfort people in good faith.
Thirdly, the analysis of the legal problems of diversified inheritance subjects.
The main body of the inheritance of land contractual management right can be summarized as follows: First, it advocates limiting the scope of heirs, which is mainly divided into: single heir inheritance system (that is, inheritance by an only child, equal rights for men and women, and priority for children left in the community), peasant inheritance, inheritance by people who jointly contract with the decedent, and first-order heirs who have reached the age of 16 and are mentally normal (referring to the contracting right of professional contracting projects with high technical requirements); Second, it advocates. Third, the scope of heirs is not limited, but heirs are required not to change the agricultural use of the land. In practice, practices vary from place to place. The author believes that all localities should make a comprehensive analysis according to the relevant rural land contract law and inheritance law, local land resources, agricultural economic characteristics, population death, increase and mobility, and formulate corresponding local regulations or policies without violating relevant laws and regulations.
Inheritance of family members on death
Regarding the question of whether some family members inherit after their death, it is generally believed that the contracted management of rural land in China usually takes the family as the unit and obtains the contracted management right of cultivated land or grassland through the family form. If one or both family members die, the land contractual management right will not be inherited; All the family members died, and the land contractual management right was eliminated, and the contracting party recovered the contracted land [4]. Another view is that "although rural land contracting in China is usually signed by households, every member of the peasant family is a contractor, and each contractor has to pay exactly the same contract fee for the land area contracted." Therefore, it can be said that China's rural land contract is essentially "everyone has a share, contracting with households" [5]. As mentioned above, the author believes that there are problems in the inheritance of the family contract model. Although it is a common relationship and partnership within the family that family members enjoy the right to contract management, the contracting of rural collective land is divided according to the number of family members, so every member of the family enjoys the right to contract management of the land he has divided into shares. Therefore, according to the jurisprudence, when some members of the family contract die (including all members of the household, but the family still exists), their contracted management right naturally becomes the inheritance, and other family members naturally enjoy the legal inheritance right, which is only covered up by the legal fact that other family members continue to operate; Only when the family contracting member dies, the family dies, and the family will be helpless. At this time, there is no legal inheritance at all. The key should be whether the last deceased who enjoys the right of family contracting has a legacy or a legacy support agreement. If so, the contracting right will be enjoyed by the legatee, and of course the legatee can also be a state or a collective. If not, it is necessary to recover the land and terminate the land in contract relationship.
(2) The inheritance of rural-to-non population and immigrant population.
For those who have moved from rural areas to non-rural areas and moved out, according to Article 5 of the Rural Land Contract Law and Article 14 of the Land Management Law, those who are not members of the rural collective economic organizations have no right to contract the land contracted by the collective economic organizations (of course, it refers to the household contract law), and they can only obtain the contracted management right through circulation. Logically speaking, since members of non-collective economic organizations can obtain the right to contracted management of land through circulation, it is unreasonable to deny that heirs are not members of collective economic organizations. Article 26 of the Rural Land Contract Law also stipulates that "during the contract period, if the whole family of the contractor moves into a small town to settle down, the contractor shall retain its land contractual management right or allow it to transfer the land contractual management right according to law according to the wishes of the contractor. During the contract period, the contractor's family moved to the city with districts and became non-agricultural registered permanent residence, and the contracted cultivated land and grassland were returned to the employer. If the contractor does not return it, the employer may take back the contracted cultivated land and grassland. It can be seen that farmers have two kinds of inheritance when they move home, and they can inherit when they settle in small towns; In a divided city, it cannot be inherited. Lawmakers may make this distinction because they think that the life of contractors who settle in small towns may not be guaranteed, while contractors who can enter cities with districts do not need to rely on contracted land for a living because of new social security. In my opinion, if we design China's land contractual management right and its inheritance system according to the above-mentioned viewpoint of restricting land contractual management right holders, the result will not be worth the candle. For example, if the heir is not a member of the collective economic organization, and his family moves to a city with a district and becomes a non-agricultural registered permanent residence, he will not have the right to obtain the land contractual management right of the collective economic organization obtained by the decedent during his lifetime, and he will still be in the contract period, which will not only cause inequality between farmers and non-farmers, but also cause inequality between non-farmers and non-farmers. Not only is it not conducive to the effective transfer of land and capital investment, but also to the effective use of land resources and the long-term stability of rural land system.
(3) Legacy of married women
Similarly, according to Article 5 of the Rural Land Contract Law and Article 14 of the Land Management Law, a married woman who loses her membership in the collective economic organization cannot inherit the right to contracted management of land, but if she has not settled in her new residence for the time being, she will lose her inheritance right in both her original residence and her new residence. Although Article 30 "Protection of Women's Rights and Interests" of the Rural Land Contract Law stipulates: "During the contract period, if a woman gets married and fails to obtain the contracted land in her new residence, the employer shall not take back her original contracted land", according to the current rural land contract in China, the family is usually the business unit, and other family members will share the contracted management right brought about by the death of married family members or some family members in the name of the family. Married women, as members other than collective economic organizations, cannot enjoy real inheritance rights. Therefore, relevant laws and corresponding applicable regulations in the Supreme People's Court should pay more attention to the protection of women's land rights and interests. In addition, we can also see that the family-based contracting method actually has disadvantages.
(4) Inheritance of persons without civil capacity or with limited capacity.
According to the law, people with no capacity for civil conduct and people with limited capacity also enjoy the right of inheritance and shall not be arbitrarily deprived. However, considering their consciousness and ability, their inheritance rights should be exercised by their legal representatives. The legal representative represents the right of inheritance and bequest of persons without civil capacity and persons with limited capacity, and shall not harm the interests of the client. Generally speaking, if the principal cannot give up the right of inheritance and bequest, and the interests of the principal are obviously harmed, his agency behavior shall be recognized. According to the principle of land resources development and utilization, land resources should not be idle or abandoned. When the land contractual management right holder is unable to engage in the development and utilization of land resources, the legal representative of the person without civil capacity or with limited capacity should be authorized to dispose of his property on behalf of minors and enjoy extensive rights such as management, restoration and development. The income from the operation shall be negotiated by both parties. Of course, the result of this negotiation should be beneficial to the client, at least it will not harm the interests of the client.
To sum up, the author does not object to the restrictions on the inheritance subject of land contractual management right. There is nothing wrong with taking members of collective economic organizations as the prerequisite for obtaining the contractual management right of rural collective land. However, it is against the fundamental value judgment standard of fairness and justice to consider whether the inheritance of land contractual management right takes place by the same standard. Generally speaking, there are two points to inherit the main body of land contract management: for members with membership rights, their inheritance rights of land contract management should be respected and protected according to law; For members who lose their membership, they should be guaranteed the right to inherit the land contractual management right during the remaining contract period legally obtained before losing their membership. The contracted land shall be recovered at the expiration of its term of operation. However, for members who lose their membership but have no other survival guarantee, they should retain their original right to inherit the contracted land management right until they have survival guarantee.
Four, the analysis of the inheritance system of related land contractual management rights
(A) the principle of inheritance of land contractual management rights
The principle of inheritance law is not clearly defined in the inheritance law, and the academic understanding of it is not completely consistent. Generally speaking, we should not only implement the basic principles of inheritance division stipulated in the inheritance law, but also take into account the good customs and folk habits in practice. Mainly includes: First, the principle of protecting citizens' legitimate property inheritance rights. The right of inheritance in contracted management is a basic right of citizens, and no one may illegally deprive or restrict it. Except for legal reasons stipulated by law, the heir's right of inheritance will not be lost for any reason, and the inheritance will not be easily owned by the state or organization, unless there is no inheritance, no legacy, or the inheritance has been given by the heir to someone other than the state, collective organization or legal heir. Second, the principle of gender equality. This principle is mainly reflected in the equality of inheritance rights between men and women stipulated in Article 9 of the Inheritance Law, including equality of the scope of heirs and legal succession order, equality of subrogation inheritance and testamentary succession between men and women, and equality of mutual inheritance rights between husband and wife. Third, the principle of caring for the rights and interests of the elderly, the disabled, children and women. According to the provisions of the inheritance law, people who lack the ability to work, have no source of income and have special difficulties in life should be taken care of when distributing their inheritance. The elderly, minors and disabled people who have no income from their own labor are generally people who lack the ability to work and have no source of income. Adhering to equality between men and women and husband and wife does not mean encouraging absolute egalitarianism. Women who are in a weak position and have no source of income or low income should be given proper care in the inheritance and division of contractual management rights. Fourth, the principle of fairness. The principle of fairness requires that the balance of interests and cost should be taken as the standard of value judgment, and the material interests between civil subjects should be adjusted to determine their civil rights and obligations. In the division of contractual management right, it mainly refers to those who support the decedent more than the heir and can give proper inheritance; Heirs who have the main obligation to support the decedent or live together with the decedent can get more points in the distribution of the estate. Fifth, the principle of preserving the share of fetal inheritance. Article 28 of the Inheritance Law stipulates that when the inheritance is divided, the inheritance share of the fetus shall be retained. If the fetus dies at birth, the reserved share shall be handled in accordance with legal inheritance. Sixth, the principle of will first. Inheritance law is a private law, and this principle is the embodiment of the principle of autonomy of will in private law. The decedent has the right to dispose of his property according to his own wishes, and if there is a will, it shall be handled according to the will inheritance or bequest; If there is a legacy support agreement, it shall be handled in accordance with the agreement. Seventh, the principle of giving consideration to the specific conditions of the land and being conducive to production and life. Heirs also have the right to jointly handle the share division of land contractual management rights through consultation. However, as a kind of real right, the object of land contractual management right is land, and the division should be based on the principle of benefiting production and life, so as not to damage the economic value and use value of land as much as possible, and not to make the production and life of the parties suffer unnecessary losses or influences as much as possible. For those that are not suitable for division, discount, appropriate compensation or allocation can be adopted [6].
(B) the way of inheritance of the right to contracted management of land
With regard to the mode of inheritance, Articles 5 and 29 of the Inheritance Law have made some provisions. The author thinks that the first way, as mentioned above, is actually the individual contracting of family members. Theoretically, when individual family members die, their land contractual management rights should be divided. This method can be used when a household is divided into several households, a "big family" is divided into several "small families", and multiple heirs demand the division of inheritance rights. But pay attention to the availability of this method. If the land is difficult to divide, or the division will lead to the reduction or even destruction of the economic and social value of the land, other methods should be adopted. The second way is common inheritance. This way is the most common habit in rural areas of China at present. In the case that the heirs are still working together in the same household and have no intention to divide the estate, or the division is not conducive to the production and life of the whole family, or the land is not suitable for division, it can be adopted. Of course, this joint ownership is still based on the share due to each heir. Third, some heirs inherit. This way of inheritance means that the contracting right is determined to be inherited by some heirs, and the heirs continue to contract, and the heirs who have not inherited are compensated economically. Contractors here should generally have the ability to operate agriculture. Fourth, if others are transferred, the successor will divide the subcontracting fee. When all heirs are unwilling to inherit the contracted land management right, they can subcontract, lease or transfer it to those who are willing to contract, and distribute the transfer cost reasonably among the heirs.
(C) the way to solve the dispute over the inheritance of the right to contracted management of land
There may be many subjects who enjoy the right of inheritance, which may easily lead to inheritance disputes. At the same time, the right of inheritance may also be infringed by foreign unreal inheritance subjects. How to solve these contradictions has also become the focus of the inheritance of land contractual management rights.
1. Dispute settlement between true heirs
A true heir refers to a person who really enjoys the right to inherit. In legal inheritance and testamentary inheritance, the real heir may be enjoyed by more than one person, but by many people. Generally, the share of heirs in the same order should be equal, but at the same time, the law gives the parties great freedom of will. Article 15 of the Inheritance Law stipulates that the heirs shall handle the inheritance through consultation in the spirit of mutual understanding, mutual accommodation, harmony and unity. The time, method and share of estate division shall be determined by the heirs through consultation. If negotiation fails, the people's mediation committee may mediate or bring a lawsuit to the people's court.
2. Ways to solve disputes between real heirs and non-real heirs.
The right of inheritance is closely related to identity, so "heirs can ask anyone who obtains property from the estate according to the non-existent right of inheritance (the owner of the estate) to return the property they have obtained." (Article 20 18 of the German Civil Code) When an untruthful heir occupies or dominates the inherited property for no reason, the true heir has the right to ask the untruthful heir to perform his obligations and restore to the original state due to goodwill, malice and negligence, which leads to the right of inheritance reply. In the dispute of inheritance qualification, the real heir does not need to prove his real right to the inherited property, but only needs to prove the fact that he has inheritance right or the other party does not, so the real right enjoyed by the heir exists in the inherited property. As a right of claim, the right of inheritance reply gives the real obligee positive rights and realizes the protection of the interests of the real heirs.
References:
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[2] Wang Xiaoying. Changes of land system and property right of land contracting right [J]. China Rural Economy, 2000, (1): 43-49.
[3] Cheng. On the inheritance of the contracted management right of rural land. China rural economy [J], 2002 (07): 10.
[4] Gu Angran: "Report of NPC Law Committee on Amending People's Republic of China (PRC) Rural Land Contract Law", Bulletin of NPC Standing Committee, No.5, 2002: 359.
[6] Jiang Yue, Li He. Marriage, family and inheritance law. Xiamen university press. 2002: 467。