Several problems of rural land disputes in the

Wu Yuankuo Wang Xiaoping

 

[source] the people of Justice

[Abstract] along with the rural urbanization, and the shortage of land resources, in recent years, many contradictions and disputes of rural land expropriation and the two round of the contracting process, on how to deal with these disputes, the courts at all levels have made different exploration, several common problems in rural land expropriation, such as the distribution of problems, the land collection collective member qualification, rural contract processing problems, combined with the practice of Anhui Province in the trial practice is summarized and explored, which puts forward some problems and puts forward the trial practice how to understand and solve the way.

[Abstract] the judicial practice problems

[text]

Along with our country city construction accelerated, countries need to levy agricultural land used for city infrastructure construction and improvement of a considerable number of land disputes, thus gradually become the social hot spot, it also becomes a difficult court trial. Treatment is correct or not is not only related to whether the protection and rational utilization of the land problem, but also relates to the interests of farmers and rural social stability. Although the state has promulgated the land management law, rural land contract law, law of Villager Committee Organization and a series of laws and regulations, but these provisions of comparison principle, the lack of specific operational procedures, thus increasing the difficulty in treatment resulted in the court of the circulation of rural land disputes cases, law enforcement standards are not unified, be quite different not only in the procedure, in the real problem is also very different. There are some unavoidable problems in concentrated form.

One, about the land acquisition disputes the admissibility

Here said the land acquisition, particularly after the land acquisition, land compensation fees, obtained by farmers resettlement fees, ground attachments and young crops compensation fee. For substances and young crops compensation fee attached to the dispute, the owner and the levying or third people, the prosecution to the court, as a civil case acceptance, there is no dispute. But for land compensation and resettlement fees dispute whether distribution as well as the lawsuit to the court as a civil case is accepted or not after, understanding is not uniform. Because the land management law enacted in 1986 has stipulated explicitly, land compensation and resettlement fees shall not be assigned to the individual, but in August 29, 1998 the land management law amended the provisions concerning the land compensation fees, resettlement subsidies shall not be assigned. Because of this, in recent years, villagers' committee or villagers groups, often will land directly allocated to the villagers, in some places because of discrimination to the villagers in distribution, cause the villagers and village committees, villagers group, or groups of villagers and the village committee of the dispute.

Due to the distribution of land compensation problems triggered disputes the prosecution to the court, the court can accept, as a civil case, the Supreme Court had different judicial interpretation. The Supreme Court in July 9, 2001 on laboratory Guangdong higher answer (Law No. [2001]51) said: "due to the distribution of income between rural collective economic organization and its member disputes, disputes between equal civil main body. The parties dispute sue to the people's court, as long as they comply with the civil procedure law the 108th regulation, the people's court shall accept." In December 21, 2001, the Supreme Court research laboratory and research and [2001]116 reply that, rural villagers for land compensation fees, resettlement subsidies and the village committee of the dispute, the people's court may refer to the Law No. [2001]51 answer for. In August 19, 2002, the Supreme Court approved the court of the Zhejiang High Court ([2002] Min Li He Zi No. fourth) thinks, "members of the rural collective economic organizations and the rural collective economic organizations for land compensation disputes, does not belong to the civil law relation between equal civil subjects, does not belong to the scope of mediation in civil litigation. To this kind of dispute, the people's court shall not accept the. Does not need to be arranged by the rural collective economic organizations of the resettlement fees and ground structures, young compensation disputes between equal civil subjects, which belongs to the civil rights and obligations of the dispute, which belongs to the scope of mediation in civil litigation." Because of the contradiction between judicial interpretation, leading to the practice of courts to accept such disputes have great arbitrariness. Some people think that this kind of case should belong to administrative litigation. (Note: Wu Nan: "the village committee as the defendant of administrative litigation conditions", "justice" in 2004 eighth people onboard.)

The author thinks, the first, the nature of property cases only by litigation entity legal relationship to decide. The villagers enjoy the contracted land, land, land requisition, dividend distribution rights to speak is a civil property rights in nature. The village committee is a villagers' autonomous organization, in many cases it is the rural collective economic organization, it is clearly not an administrative organization, made in it (including the omission) no law, regulations, rules authorized behavior, can only be regarded as a civil subject status, and the villagers is the nature of civil subject. The village committee and villagers from the identity, both in law are the subject of civil legal relationship between equal, not between them administrative legal relationship and manager in the main body status of the inequality relationship. Second, rural collective land expropriation, land compensation fee is a compensation for the whole village, all the members of the collective should be shared, the distribution of land expropriation, he shall enjoy all the villagers villagers treatment participation distribution, this distribution system of civil action between subjects of equal footing. Third, according to the relevant provisions of the rural land contract law, the contracted land is levied according to law, the Contractor shall be entitled to occupy, corresponding compensation. Land acquisition, allocation of rights is a legal property civil rights of rural citizens. According to the principle of civil law, the relevant legal provisions and judicial interpretation, the expropriation of land allotment disputes should belong to the scope of mediation in civil proceedings, the prosecution to the court for distribution of land expropriation, the court shall accept the case. That the land acquisition, allocation is a kind of administrative legal relationship is to confuse the boundary between the behavior of land expropriation and land expropriation between sub distribution. But to the land expropriation behavior and what criteria for compensation, is a kind of administrative behavior, if the members of the collective economic organization or objected to this proposed a civil lawsuit to the court, it should be to solve through administrative procedure.

To confirm the membership of the rural collective economic organization, the problem about two

In the cases of disputes in the rural land circulation, the more controversial, more problems, but also the most difficult to deal with is the problem that membership of the rural collective economic organization. In terms of land acquisition, allocation of land contract disputes or disputes and the transfer of the contractual right disputes, who is the main body of the most suitable, recognized around the different standards, resulting in law enforcement is not uniform. Because the subject of rural land disputes and other civil cases subject is special, generally only get member membership can enjoy the right of distribution of land acquisition and land contract management right of villagers treatment. In this sense, qualification and villagers members enjoy the rights are unified. Then on the basis of what conditions to determine the membership of the rural collective economic organization, the understanding and the practice mainly has two ideas, a claim that the household registration according to the household as the standard, where should belong to where the members of the collective economic organizations; a claim on the basis of residence, i.e. the contracted land where is where the collective members of the economic organizations. (Note: the Supreme Court of Anhui province in December 26, 2004 held a provincial people's Congress, committee of political science and law, government regulations, land, farming appoint do, women's federations and other departments concerned to participate in the forum, the meeting on this issue is raised above two views.) The two propositions are reasonable, in practice on the basis of any claim to operate. But I think these ideas are too principle and practice, there are gaps, is not conducive to quell disputes, resolve conflicts, balance of interests. Especially the "Waijia female", divorced, widowed females, "uxorilocal son-in-law", college students, as well as serving prisoners, "empty" and so on, because of their special circumstances, so that their rights and interests in the rural land circulation in the relative fuzzy, according to any of the above for identification of these people may have fair.

According to the judicial practice, the author thinks that Anhui Province, made the membership of the rural collective economic organization, the general should be to achieve the rural collective economic organization on the basis of local household registration. Because the household registration and membership is most closely linked, in our country the current household registration is not reform and open up the case, the household is the main symbol of a right and identification. The household registration are natural has also made and born legal acquisition, legal access and for marriage, adoption, legacy support agreement, administrative orders made. In order to register as a basis for determination of membership, we should adhere to two principles: in the rural collective economic organization of production, life as the basic principle; at once in the production, life of original collective economic organizations, after leaving the city and did not obtain the minimum living guarantee for supplementary principle. It is said that members of the collective economic organizations of the household registration qualification, is the basic basis, but also give consideration to other aspects of the. Compared with the standard of the actual situation in our country at present. Not only can guarantee the household registration in the collective economic organizations and in the production and life of the people the right of course, but also can protect the household although not in the collective economic organization, but in the long-term production and life or even leave the collective economic organization, also does not have the legitimate rights and interests of vulnerable groups in city living guarantee made but, at the same time put an end to those who registered in the collective economic organization, but not in this life, to "grab" the collective economic organizations of the economic benefit of the. In determining the membership problem in addition to following the basis and principles, and the following special subject should distinguish the different situation to.

     As for the "Waijia female" membership.

"Waijia female" refers to the married daughter, including "marry Nongnv" and "marry a city girl". For "Waijia female", lost practice their rights are often two. "Home" that married girl is poured out of the water, in the land acquisition, land allocation or natural "Waijia female" excluded, and "husband" think, she may be in the "home" have contracted land or household did not move to "husband", often do not take her as the members of the collective economic organizations. The author believes that, in accordance with the law, protect women's rights and interests of the rural land contract law and other relevant provisions, should adhere to the principle of equality between men and women, to protect the legitimate rights and interests of women, not to let their membership by two negative free. Therefore to "marry Nongnv" regardless of their household registration in where, as long as have been out of "life's" collective economic organizations, and to the "in laws" collective economic organization of production and life, should have "family" members of the collective economic organizations qualification. "Married women in city", if not the non-agricultural household registration, shall be deemed to have the original members of the collective economic organizations qualification.

For divorce, widowed women members of the qualification.

Divorced, widowed women tend to return "home" to the production life, but the contract may also be in the "in laws". For these people the membership to determine how the situation is more complex, for example, some divorce, widowed from her household and moved back home, and return home from her life, and some still in her household, contract the ground is in the family's home, but the people back to the home life and production etc.. The author thinks that the divorce, widowed after back home life, residence and is located in the "mother" of the collective economic organizations, should be regarded as "family" members of the collective economic organizations; if the household is still "husband", the contract is in "husband", only people in the family life, should be regarded as "husband" the members of the collective economic organizations.

For conscripts, college students, prison staff member qualification.

The above personnel as soldier, school or prison, household or move out or cancellation, is because of the legal and policy, make its domicile or residence to temporarily leave the collective economic organizations. In the school of rural students has no independent source of income, and the completion of their studies mainly rely on the land revenue; in addition, from the national development and education, encourage the training of high-level personnel point of view, should also protect the income distribution in the high school students the right to. Active duty conscripts, they are in order to protect the national security and military service, to protect the profit distribution right to consolidate national defense military, national security is very important. Prisoners in prison, although the loss of personal freedom and political rights, but does not lose the civil rights, the membership right does not lose. The staff should be in the army, and served during the school that enjoy the original domicile collective economic organization membership.

College students after graduation, have the right to income distribution should respect the villager autonomy, decided by the villagers meeting or the villagers' representative meeting. The past high school and college students hired, its status is changed, after graduating from the distribution of national unity, the identity and source of life is change, and the township, the village has no economic ties, the state canceled the work, large, secondary school students after graduation in the country can not guarantee the city work, so its relationship with the township, village is not terminated, without formally joined the work principle should enjoy the right to income distribution.

For the determination of "empty" membership.

"Empty" generally refers to the household registration in the collective economic organization is located, but not in this life. For these people it would give membership cannot lump together, should be treated differently. All hang in the collective economic organization, both sides have a clear "hang" agreement, should be in accordance with the agreement; if there is no agreement, registered permanent residence through the villagers democratic agreed to receive, but no fixed working or living abroad, shall be entitled to the members of the collective economic organization without democratic qualification; the program, should not be identified with the membership. Of course, there are special circumstances exception. For donations to buy urban residents, is still in the accounts of the collective economic organization of production and life, should have the collective economic organization membership.

Family members of family contracting qualification.

Have the right to the contracted management of rural households is the household as a unit, only has the family member qualification, have the right to the contracted management of land, and in a certain period of time the amount of basic is the same, but the changes in the family. The family contract, in the determination of family members, should include the right to the contracted management of increase achieved by birth, marriage, adoption, in the same family as a living unit, with the members of the collective economic organization qualified people. Of course some people advocate in violation of the family planning policy, does not enjoy the population land contract number, should not have the family member qualification. The author thinks, this is inappropriate, rights of the capacity at birth, finally died, not because he is black, and stripped of his membership. The contractor of the family household, the household is not independent of the right to land contractual management, each household family members still belong to the Contractor's family members.

Three, about the allocation of land acquisition, processing

According to the provisions of the land management law, rural land contract law, the national land according to law should pay land compensation fees, resettlement grants, the ground attachments compensation and compensation for young crops. The cost in addition to material compensation attached on the ground and young crops compensation fee specified for the owners, the other two charges in general by the collection of the payment to the rural collective economic organizations, the cost to the use and distribution of the law does not clearly defined. Rural collective economic organizations tend to "villager autonomy" as in the management and use of land requisition and allocation problem more randomness, in accordance with the provisions of the organic law of the villagers committees, village collective is an autonomous organization, have the right to decide the distribution scheme. But the judicial review of the allocation scheme is formed by the villagers meeting shall be the legal review procedures shall include the contents or the legal review, there is disagreement in practice. Some people think that, land acquisition, allocation is a villager autonomy problem, as long as the legal procedures, the court should not intervene. According to another view, the allocation program review not only to the legitimacy of the process review and content validity review, the reason is not in violation of national laws and regulations of villagers autonomy, is based on the village committee organization law of villagers' Autonomy: Twentieth items, as well as charter village villagers' assembly or the villagers' representatives to discuss and decide shall not conflict with the constitution, laws, regulations and national policies, shall not infringe the personal rights, democratic rights and legitimate property rights. The author thinks, the essence of the difference between the above viewpoint in court on whether violations of villagers' autonomy in the intervene problem. Villager autonomy is a village collective law enjoyed self management of village affairs right. The villager autonomy shall be conducted. Negative, based on the characteristics of judicial neutrality, the court shall not seek the active intervention of illegal acts in the villagers' autonomy, but in the intervening as arbiter of disputes, to deal with illegal acts to be corrected, it is not only the need to court to realize law justice value function in the case of the treatment, and the construction of the country law and order is of positive significance. According to Anhui province in the trial practice, the author thinks that in dealing with land acquisition, allocation of disputes should grasp the following two principles.

The formation of allocation shall be in accordance with democratic procedures.

The villagers assembly or the villagers' representatives meeting is self-government, decisions on major issues of institutions. The right to exercise the power of autonomy for the protection of the villagers, the villagers Committee Organization Law Article seventeenth, article eighteenth paragraph second specified holding the villagers meeting procedures, and the provisions of the eight class of important matters related to the interests of villagers in nineteenth, the village committee must draw villagers conference decision. There is no doubt, items of income distribution scheme of rural collective economic organization relates to the vital interests of the villagers, the people's court in the review of income distribution plan, should first review the formation of the income distribution is consistent with the democratic process, whether the villagers assembly or the villagers' representatives meeting democratic produce. For violation of the meeting or the villagers' representatives meeting democratic allocation program form, shall be confirmed as invalid.

Allocation scheme shall not contravene the constitution, laws, regulations and policies of the state.

Allocation is the embodiment of villagers to exercise the power of autonomy, but the autonomy is not absolute. The formation of allocation scheme should not only meet the democratic procedures, the content must be legitimate. According to the village committee organization law the twentieth regulation, the people's court in the review distribution plan, should be based on the laws, regulations and policies of the state as the basis, any violation of laws, regulations and policies of the state mandatory regulations, or violation of the legal person, property rights, should be sure that it is invalid.

Of course, in addition to the above principles, some people claim also should adhere to the rights and obligations consistent principle. Because the civil activities shall comply with the principle of fairness, conflict of interests in civil subjects, to balance the interests of both parties to the rights and obligations of equivalence. Land acquisition, allocation and villagers qualifications made different, because the land belongs to the collective ownership of rural household, the local people, members of nature is the peasants' collective economic organizations, equally has the rights to a land. However, this right is a kind of common ownership, it is different with the share system, the land ownership is not based on a segmentation. In a specific proportion, should be appropriate to refer to the land and the duties of size. But there are also quite a few people think can not apply this principle in dealing with land acquisition, allocation problems. Because the land is the foundation of peasants to survive, as long as the members of the collective economic organization, regardless of whether the collective economic organizations as a duty, or contribution, should enjoy the same treatment with other members of the. If too much emphasis on the equality of rights and obligations, so, such as the disabled, the elderly, the rights of infants will be difficult to achieve. And the land acquisition, land revenue generated based on, as long as the members of the collective economic organizations, they should enjoy the equal right of income distribution. I believe that this understanding is correct.

In recent years, parts of rural Anhui Province, there is a distribution of land acquisition, to "borrowing" form, in order to avoid the legal situation. The main form of the village committee to "borrowing" form will be land acquisition, issued to it that should participate in the distribution of the villagers. The villagers or the issue of promissory note or do not issue IOUs, the two sides without repayment period, repayment of principal and interest free loan amount agreed, the same, only to "borrow" not "". But to some villagers, such as "Waijia female" is not borrowing, such behavior is called distribution for land acquisition loans, and its essence is to circumvent the law, income distribution rights deprivation or restriction of some villagers. Zhouli such cases, should be on the basis of the established facts, confirming according to actual civil behavior, and the loss of income distribution rights for the rural collective economic organizations shall not "borrowing" of the villagers asked to participate in the distribution of litigation, should be in accordance with the principles established by the law.

In the land acquisition, allocation is easy to cause dispute is the issue of resettlement fees.Especially the collection units (or only a village villagers group villagers) part of land disputes more special. Is a contract of the villagers often advocate the resettlement grants were assigned to them, and the collective economic organizations tend to be most of the villagers, the resettlement fees equally to all the villagers. This kind of litigation to the court to deal with, practice. The author thinks, resettlement subsidies according to the law is the compensation to the need for the people. The land contract farmers expropriated certainly belongs to the need for the people from land, but as a village collective economic organization, it is the owner of the land, is the land, land expropriation caused land reduced, the need for people is a generalized concept, but not limited to contract the land one, because the ownership of land by the village collective, not by what the villagers enjoy, but all the villagers are common, not at a total. (Note: Gong Weidong: "Liang Mou should not get land compensation fees", January 24, 2005 "people's Court Daily".) Because of this, in the collection and tabulation process, statistics should be placed are not limited to contract households, but all the villagers. The relevant departments for subsidies are not directly on the contract households head issuing, not directly to the relocation to the contractor, but issued to the employer. The resettlement fees shall belong to all the members of the collective economic organizations to enjoy. Collective economic organizations in the issuance of resettlement time-consuming, should consider the actual situation of land expropriation contractor, properly handle. If through democratic procedures decided to give the land expropriated the contractor re adjustment of land, all the members of the collective economic organizations participate in the distribution of resettlement fees, the court shall support; if the collective economic organizations for expropriated land without the Contractor's contract to re adjustment, the contractor should enjoy all the resettlement fees shall support. Because the land is the foundation upon which the survival of farmers by land acquisition, the contractor, if not readjust the contracted land, lost the only survival of production and living materials, therefore, to make them a stable life, must be reasonable arrangements for them, if not provided should be given all the resettlement fees.

Four, about the land contract and the contract dispute cases trial

The rural land contract is a new type of contract in economic system reform of our country, is a form of separation of ownership and management, land contract which is other than members of the rural collective economic organizations and the rural collective economic organizations and the collective economic organization who signed between the contracted management of rural land, and pay a return protocol.

In the trial practice the author found that, in some places there is inadequate procedures, work is not careful, not in place the management problems in land contract. Some of the long time not to sign the contract with the contractor, also does not grant the right to land contractual management certificate; and on the same piece of land has signed more than two land contract; some of the work of rough, grant right to contracted management of land, the forest certification is wrong, wrong and others to sign phenomenon. These issues as central to the agricultural investment, improve the effect of subsidies to farmers and improve grain purchase price and compensation for expropriation by the state standards and other factors, land contract disputes increase obviously, difficulty, new situations and new problems appear constantly, bring certain difficulty to the trial work, through summing up experience, the author thinks, should adhere to the following guidelines in the trial of such cases.

Set the focus on the protection of farmers' rights and interests of the judicial idea.

The people's courts at all levels in the treatment of agriculture related cases to the guiding ideology, resolutely implement the protection of the legitimate rights and interests of farmers in accordance with the law. The farmer has a long-term legal and stable land contract management right, any organization or individual shall illegally adjust and take back the contracted land, for all kinds of violations of the right to land contractual management disputes, farmers request compensation for losses, shall support in accordance with the law; for illegal interception, the withholding of farmers income of contract disputes, the farmer asked return contract operating income, in accordance with the law to support.

Maintaining social stability in rural areas and promote the agricultural development principles.

The land contracting relationship is the foundation of maintaining social stability in rural areas, if the land contract relationship is disrupted, may lead to the instability and the farmers do not trust the government, and may even lead to incidents, we must have a clear understanding, patience, meticulous work should be done in the trial, avoid conflicts. Land contract management and its transfer involves not only the rural contract between the stability and the interests of the majority of farmers, but also relates to the rational allocation of land resources and utilization, we should improve the relations of production and productivity development point of view to consider, not only fair, but also the efficiency.

Work closely with local government, pay attention to principle of mediation.

Coordinate the relationship with local government, standardize the behavior of local government. The local government has to land resource control and management functions, especially the expropriation of collective land and agricultural land change into construction land, but the control and management functions, can not replace the collective land ownership, therefore, must standardize the behavior of local government. To avoid or reduce litigation. To have to the proceedings of the case, also should cooperate closely with the relevant departments, local government, strengthen the mediation work, as far as possible through patient and meticulous ideological work to resolve disputes.

Based on a good grasp of the principles mentioned above, the land contracting contract dispute cases trial also should pay attention to the following questions.

One is to be identified as the contract established according to the "two cards" and written contract.

The so-called "two cards" refers to the right to land contractual management and warrants. "Two card" is an important basis for the people's court in the contract and the contract management right transfer contract disputes. But in practice, some contractors have no "two cards", therefore, the author thinks that although there is no "two cards", but there is a written contract, task book, as well as to be able to prove the existence of contract legal relationship of facts and documents can be identified as the contract established according to.

The employer on the same piece of land has signed more than two contracts also exist in practice, the Contractor shall have the right to the contracted management of claims, which should be dealt with according to the following principles: (1) have been registered and receive the right to land contractual management or forest right certificate to the contractor, obtain the right to land contractual management, but except for a malicious collusion. (2) failed to register for the right to land contractual management or forest right certificate, has the actual contract management has the right to land contractual management. Besides, often appear contract registration and contract content or the actual performance inconsistency caused disputes. Therefore, the author believes that the contract and contract is inconsistent, it should be confirmed in contract card content as the basis. The party has any objection to the contract credit records content, should be informed by the procedure of administrative litigation, does not belong to the scope of civil cases.

Two is to pay attention to the effectiveness of the contract review.

The validity of contract review can be from three aspects, namely, the subject of the contract, the procedures of signing a contract, the contents of the contract.

The main contract: according to the current law of our country, the characteristics of rural land contractual management right has the right of members. Without the collective agreement, units and individuals outside the collective economic organizations shall not enjoy the right to the contracted management of land. The rural land contract law fifteenth stipulation: "the family contract the contractor is the collective economic organizations of farmers." Land Management Act fifteenth provisions of the second paragraph: "of all the peasant collective land away from the collective economic organizations of the unit or individual contract, must be approved by the villagers meeting more than 2/3 of the members or over 2/3 of the villagers' representatives agreed, and submitted to the township (town) people's Government for approval." Therefore, attention should be given to members of the examination the contractor whether to belong to the collective economic organizations.

Conclusion: land contracting contract should follow the Democratic procedures. The rural land contract law eighteenth stipulation: contracting plan in accordance with the law shall be approved by the villagers meeting of members of the collective economic organization of more than 2/3 members or more than 2/3 of the villagers' representatives agreed. For violation of statutory democratic procedures of the contract shall be deemed null and void.

The contents of the contract: in the review of the contents of the contract, shall be tried in accordance with the relevant provisions of the rural land contract law. The contract will be agricultural land for non-agricultural construction, without approval, it shall be deemed as invalid.

Three is to review the employer to adjust and take back the contracted land is valid.

Provisions of the rural land contract law, China's land contract period is the shortest in 30 years. The longest in 70 years or even land approved by the relevant departments can also extend. But during this period, many changes occur. The employer often because of her family contracting parties in marriage, death of a family member, reason of contractor in violation of the family planning policy, the contractor was drafted into the army or admitted to colleges and the contracted land illegal withdrawal or adjust the contracted land, or due to the Contractor's abandoned, fallow, the contract shall take back the contracted land. Produced by the above circumstances disputes, the court should be based on the provisions of the rural land contract law, legal review adjustment and recovery, such as illegal adjustment and recovered, the employer will not recover, adjustment of the contracted land shall be contracted out to others, the contractor requests its return the contract and compensation for losses, shall be supported; if the employer will recover, adjustment of the contracted land shall be contracted out to others, the contractor to the employer and others as the co defendant, requesting confirmation of the employer and to enter into a contract is invalid, the return of the contracted land, should be supported. This one should be noted on the contractor abandoned, waste. According to the provisions of the third paragraph thirty-seventh of the land management law, the unit or individual contract management of cultivated land abandoning for two consecutive years, the original contract shall terminate the contract, recover the cultivated land. In practice, the employer often based on provisions of the contractor and to recover abandoned, fallow land. But the rural land contract law only in accordance with Article twenty-sixth, the employer may take back the contracted land. No provisions of the contractor, the employer shall be abandoned arable land to recover the contract. Therefore, the author believes that, in the cases of disputes over rural land in the trial, shall first apply the law of rural land contract.

The protection mechanism of five, several suggestions -- perfect rural land contractual management right

Strengthening rural land right of publicity.

Certificate of entitlement to 1 standard issue.

The subject of ownership or use right of land, and ownership boundaries shall rely on the certificate of right to be clear. Regulations of rural collective land ownership certificates to the implementation of the land administration law is issued on the land owner application as the premise, but the relative increase in the current rural land disputes in the period, the existing rural land ownership relations, should focus on the rural land issue relates to the use of state-owned land, and collective all of the land, clear what rural land should be owned by the state, which land belongs to the collective of farmers, and respectively belong to a village, what level of peasants' collective ownership, clear boundaries between the land, this will have long-term stability of rural land ownership relations role.

Rural land contract and management rights should belong to the real property usufruct. Real estate property generally require registration to create, but the countryside land contracting right of management, has a close relationship with the members of the collective economic organizations have the qualification, the public can through to sb membership understanding, to a certain extent, know whether it has the right to the contracted management of at the same time, by signing a contract and payment certificate of the right to contracted management to the public, to a certain extent. The contracted management right of rural land is still the nature and function of property rights certificates, therefore, has very important significance for the issuance of certificates of stabilizing the rural land. Therefore, we should make and issue certificates for the right to land contractual management rights certificate, shall be detailed, clear, and set up the circulation of the right to the contracted management of the maintenance contract relations, stability.

Register 2 for special contract relationship.

On the relationship between agricultural contracting, for some special contractual relationship shall carry out registration. Forest land contract, due to the land use rights and land rights content tree is more complex, if not to implement the registration system, it is difficult to human rights more complicated right content of external publicity, the publicity of the general contracted land is more important. Although our country on land contracted land use warrants. But because the publicity effect of forest right certificate is not strong, although it can clear the contracted land management authority, but third people it is difficult to know whether the establishment of property rights contract relationship, who the person is, but because the woodland contracting qualification and no clear limits, third people is very difficult from the members of the collective economic organizations to determine whether the identity of the right to contract land, once the transfer of forest rights without timely registration, the assignee in the normal transaction and transfer, the transferee rights might be infringed.

Focus on the dual protection of real rights and creditor's rights, accelerate rural land contract management right pace.

The rural land contracted management right in our country is set by contract, creditor's rights protected mode. However, because of its nature, the creditor's rights and other characteristics, the defects of management rights protection, congenital. Therefore, the author thinks that: (1) reform related to the right to land contractual management legal system. The right to land contractual management right is the basis of the right to land contractual management, as a legal clarity of property is the land to enter the market conditions, it should speed up the right to contracted management of rural land property right, the protection of the right to the contracted management of. (2) from the law gives the farmers long-term and stable land contract management right is the right to land contractual management security. Therefore, the long-term and stability in legislation to deal with the right to land contractual management to be refined, to the illegal withdrawal or adjustment of the contracted land shall clear the situation and formulate corresponding measures to prevent. (3) to establish the contract deadline. Right of the right to the contracted management rights in legal form requires confirmation deadline, make it a long-term stable right. The contract period, the rural land contract law twentieth stipulation; the land contract period is 30 years, the term of contract for grassland in 30 to 50 years, the term of the contract area is 30 to 70 years. The sixty-second article of the law, the law before the implementation in accordance with state regulations, contract, contract period is longer than the provisions of this law, shall continue to be effective. The author thinks, the rural land contract law although reflects a sense of legal doctrine, but the law is still on the right to limit the short or long term, clear 30 years should be the most short term land contract, the contract deadline both sides can be resolved through contract negotiation, realize the organic combination of statutory and contractual, both conducive to the protection of the interests of the contractor, but also take into account the specific circumstances of the country and the actual requirements of the parties. (4) the right to the contracted management of legal content. The law should clearly confirm the contracted management right of people to enjoy the land contract management right, usufruct and disposition right products, have the right to the contracted management right transfer, rental, investment, exchange or transferred according to law, contract in the land contract period shall be expropriated by the state or collective use, the contractor shall have the right to obtain appropriate compensation in accordance with the law; contract expiring contract, have the priority right and so on.

To solve the mechanism about rural land dispute.

The rural land contract law fifty-first stipulation: for land contract disputes, the parties can be resolved through consultation, or request the villagers' committees, township (town) people's government mediation. If the parties are unwilling to negotiation, mediation, or the consultation fails, to the rural land arbitration institution for arbitration, may also bring a suit directly to a people's court. According to the provisions of the law, China has established a mechanism of negotiation, mediation or arbitration, four kinds of land contract dispute, more ways to solve disputes. Therefore, the author thinks that such disputes should be focused on the following ways.

1 pre litigation mediation counseling.

Because agricultural land disputes have characteristics of family and - to some extent, the grassroots people's mediation organization is the first to find the disputes of a level mechanism, they can grasp the various cases of information. If the contradictions at the beginning, the grassroots people's mediation organization can catch, catch, catch small early signs, efforts to resolve conflicts in the bud, will be able to avoid a greater dispute. At the same time, mediation at the grass-roots staff and disputes are more familiar with, the real reason, understand their respective characteristics and the dispute to mediation, but also conducive to the final implementation. Therefore, we should strengthen the people's mediation organization to mediate disputes relief work, give full play to the people's mediation work network advantage, and maintaining social stability, "the first line of defense" role, will completely solve the dispute as soon as possible, before litigation.

2 to strengthen the arbitration mechanism.

Parts of Anhui have been set up rural land contract dispute arbitration body, and carry out relevant arbitration, however, most of the area has not yet been established arbitration institution, although some have been established but not for arbitration work personnel shortage. Such disputes arbitration proceedings the lack of specific legal provisions, the arbitration committee in dispute resolution does not play a greater role. Therefore, should establish and perfect agriculture contracts contract arbitration mechanism, make agricultural contract dispute settlement by arbitration as far as possible, in order to achieve the purpose of a variety of ways to resolve disputes.