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Study on the Attributes of Rural Land Management Right and Land Contracting Right in China

  • Journal of International Business Transactions Law
  • Abbr : IBT
  • 2019, (26), pp.47-74
  • DOI : 10.31839/ibt.2019.07.26.47
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law > Private Law > International Commercial Transactions Law
  • Received : June 20, 2019
  • Accepted : July 10, 2019
  • Published : July 31, 2019

Chen zhi 1 LI ZIGONG 2 CHEN DAPENG 3

1中国西南政法大学
2
3중국서남정치대학

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ABSTRACT

The revised Rural Land Contract Law clarifies the right structure of the “Three Rights Division”. However, the attributes of land contracting rights and land management rights are not clear, which brings many obstacles to the realization of the transfer of rights. The root of the problem lies in the deviation between the economic thinking and the legal thinking that are difficult to bridge in the reform. From the policy implication of the “Three Rights Division” policy, the land management rights are biased towards property rights, while the overall law is biased towards creditor's rights; the land contracting rights are not independent property rights in terms of policy or law. In terms of interpretation, the independence of land management rights should be emphasized. Since the land contracting right cannot carry the content of the rights after the separation, it should return to the qualification status.

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