With the economic and social development, there are more and more phenomena of rural land circulation in China, and the "Rural Land Contract Law of the People's Republic of China" has made special provisions on how to transfer land legally and how to protect one's rights and interests. On January 26, 2021, the Ministry of Agriculture and Rural Affairs issued Decree No. 1: "Administrative Measures for the Circulation of Rural Land Management Rights", which came into force on March 1, 2021, is an important regulation on rural land circulation. This paper intends to sort out the issues related to the circulation of rural land management rights.
01. What is rural land circulation?
China's rural land implements the separation of collective ownership, peasant households' contracting rights, and land management rights, and the rural land circulation we talk about refers to the circulation of rural land management rights. The circulation of rural land operation rights refers to the act of the contracting party handing over part or all of the land operation rights to others to independently carry out agricultural production and operation within a certain period of time in accordance with the law, provided that the contracting relationship between the contracting party and the contract issuing party remains unchanged.
02. What are the legal provisions for rural land circulation?
Articles 32 to 43 of Chapter 2, Section 5 of the Rural Land Contract Law focus on the issue of the circulation of rural land contract management rights, and on January 26, 2021, the Ministry of Agriculture and Rural Affairs promulgated the Administrative Measures for the Circulation of Rural Land Management Rights (Order No. 1 of 2021 of the Ministry of Agriculture and Rural Affairs), which is the most important regulation on the circulation of rural land management rights.
03. What principles should be followed in the circulation of rural land?
The circulation of land management rights shall adhere to the basic system of collective ownership of rural land by farmers and contract management by rural households, maintain the stability and long-term stability of rural land contracting relations, and follow the principles of law, voluntariness, and compensation, and no organization or individual may force or obstruct the contracting party from transferring land management rights. The circulation of land shall not change the nature of land ownership and the agricultural use of land, and shall not damage the comprehensive agricultural production capacity and the agricultural ecological environment;The circulation period shall not exceed the remaining term of the contract period;The transferee of the transfer must have the ability or qualification of agricultural operation;Under the same conditions, the members of the collective economic organization enjoy priority.
04. What are the prohibitions on land circulation?
There are "four prohibitions" in the circulation of land management rights: the circulation of land operation rights shall not harm the legitimate rights and interests of rural collective economic organizations and stakeholders, shall not damage the comprehensive agricultural production capacity and the agricultural ecological environment, shall not change the ownership nature of the contracted land, shall not change the agricultural use, ensure that farmland is used for agricultural purposes, give priority to grain production, stop the "non-agricultural" of cultivated land, and prevent the "non-grain" of cultivated land.
05. Which department manages land circulation?
The Measures for the Administration of the Circulation of Rural Land Management Rights stipulate that the Ministry of Agriculture and Rural Affairs is responsible for the guidance on the circulation of land management rights and the management of circulation contracts nationwide. The local people's ** agricultural and rural affairs (rural operation and management) departments at or above the county level shall, in accordance with their duties, be responsible for the circulation of land management rights and the management of circulation contracts within their respective administrative areas. The people of the township (town) are responsible for the circulation of land management rights and the management of circulation contracts within their respective administrative areas.
06. Is it necessary to register for land transfer?
The Rural Land Contract Law stipulates that if the term of circulation of land operation rights is more than five years, the parties concerned may apply to the registration authority for registration of land operation rights. Without registration, it is not allowed to confront a bona fide third party.
07. Can the village committee ask the villagers to transfer the land?
Without the written entrustment of the contractor, no organization or individual has the right to decide in any way on the transfer of the contractor's land management rights. Where the contracting party voluntarily entrusts the contract-issuing party, intermediary organization, or others to transfer its land operation rights, the contracting party shall issue a power of attorney for circulation. The power of attorney shall clearly indicate the matters to be entrusted, the scope of authority, the time period, and so forth, and shall be signed or sealed by the client and the trustee.
08. What are the requirements for the transferee of land transfer?
The transferee of the transfer of land operation rights shall be organizations and individuals with agricultural management capabilities or qualifications. Under the same conditions, the members of the collective economic organization enjoy priority. The transferee shall protect the land in accordance with relevant laws and regulations, and the transferee has "three prohibitions" on the use of land: it is forbidden to change the agricultural use of the land;It is forbidden to idle or barren cultivated land, and it is forbidden to occupy cultivated land to build kilns and graves, or to build houses, dig sand, quarry, mine, and take soil on cultivated land without authorizationIt is forbidden to occupy permanent basic farmland for the development of forestry and fruit industry and to dig ponds for fish farming. If the transferee re-transfers the land operation rights obtained through circulation and provides financing guarantees to financial institutions, it shall obtain the written consent of the contracting party in advance and file it with the contract-issuing party. The holder of the land operation right has the right to occupy the rural land within the time limit agreed in the contract, independently carry out agricultural production and operation, and obtain profits.
09. What are the ways of land transfer?
According to the provisions, the contracting party may transfer the land operation right by leasing the first contract), buying shares or other methods that comply with the relevant laws and national policies. Leasing of ** package) refers to the contractor leasing part or all of the land management rights to others to engage in agricultural production and operation. Shareholding refers to the fact that the contractor contributes part or all of the land operation rights as a capital contribution, becomes a shareholder or member of the company, cooperative economic organization, etc., and uses it for agricultural production and operation.
10. Do I need to sign a circulation contract for land transfer?
When the contractor transfers the land operation right, it shall sign a written transfer contract with the transferee on the basis of consensus and file it with the contract issuing party. Where the contracting party hands over the land to others for cultivation for no more than one year, it may not sign a written contract.
The contract for the transfer of land operation rights generally includes the following contents:
1) The names and addresses of the parties, such as the names and addresses, **, etc.;
2) The name, four to, area, quality grade, land type, land plot, etc
3) The duration and start and end dates of the circulation;
4) Circulation mode;
5) the use of the land to be transferred;
6) the rights and obligations of the parties;
7) The circulation price or share dividends, as well as the payment method and payment time;
8) Disposal of above-ground attachments and related facilities after the expiration of the contract;
9) The ownership of compensation fees when land is expropriated, requisitioned or occupied in accordance with law;
10) Liability for breach of contract.
The model text of the contract for the transfer of land operation rights shall be formulated by the Ministry of Agriculture and Rural Affairs.
11. Under what circumstances can the contractor terminate the land transfer contract?
The contracting party shall not unilaterally terminate the contract for the transfer of land operation rights, except in any of the following circumstances: (1) changing the agricultural use of the land without authorization;(2) Abandoning farmland for more than two consecutive years;(3) Causing serious damage to the land or seriously damaging the ecological environment of the land;(4) Other serious breaches. In the above circumstances, if the contracting party does not terminate the contract for the circulation of land operation rights within a reasonable period of time, the contract issuing party has the right to request the termination of the contract for the circulation of land operation rights. The transferee shall compensate for the damage caused to the land and the ecological environment of the land in accordance with law.
12. How to stipulate the legal relationship between the parties in the circulation of land operation rights?
Where the contracting party transfers the right to operate the land, its contractual relationship with the contract issuing party remains unchanged. With the consent of the contractor, the transferee may invest in soil improvement, construction of ancillary and supporting facilities for agricultural production in accordance with the law, and obtain reasonable compensation for its investment in accordance with the contract. The holder of the land operation right has the right to occupy the rural land within the time limit agreed in the contract, independently carry out agricultural production and operation, and obtain profits. With the written consent of the contracting party and filing with the collective economic organization, the transferee may re-transfer the land operation right.
13. Can land management rights be financed?
The Rural Land Contract Law stipulates that the contracting party may use the land management right of the contracted land to obtain financing guarantee from financial institutions and file it with the contract issuing party. The transferee may obtain the land operation right through circulation with the written consent of the contracting party and file with the contract-issuing party, and may obtain financing guarantee from a financial institution.
The security interest is created when the financing security contract takes effect. The parties concerned may apply to the registration authority for registration;Without registration, it is not allowed to confront a bona fide third party. When the security interest is realized, the security interest holder has the right to be compensated in priority for the land operation right. The measures for the financing guarantee of land operation rights shall be prescribed by the relevant departments.
14. What are the special provisions on the land for the circulation of industrial and commercial capital?
Local people at or above the county level shall establish a hierarchical qualification review and project review system and a risk prevention system for the transfer of land management rights by industrial and commercial enterprises and other social capital in accordance with the law, strengthen supervision during and after the event, and promptly investigate and correct violations of laws and regulations.
15. How to deal with land transfer disputes?
If there is a dispute or dispute over the land operation right, the parties may resolve it through negotiation, or they may request the villagers' committee and the township (town) people to mediate. If the parties are unwilling to negotiate or mediate, or if the negotiation or mediation fails, they may apply to the rural land contract arbitration institution for arbitration, or may directly file a lawsuit with the people's court.