Analysis of Secondary Separation of China's Rural Land Rights from the Perspective of Analytical Jurisprudence

Jicheng SU，Hongjuan LI*

Civil，Commercial and Economic Law School，China University of Political Science and Law，Beijing 100088，China

1 Introduction

In Several Opinions on Deepening Rural Reform and Accelerating Modern Agricultural Development issued by the Central Committee of the Communist Party and the State Council of the People's Republic of China on January 19，2014，it grants farmers with possession，use，usufruct，circulation，contractualmanagement right mortgage and guarantee rights over contracted land.According to this，separation of three rights，namely，＂ownership＂，＂contractual right＂and＂management right＂of contracted land，is formally put to the level of rural land institutional innovation and legal construction.The first time separation of rural land rights is separation of ownership and use right.After the land use right is derived，there is status right in the practice and research of rural land use right.If taking contractual right as status right andmanagement right as property right，to realize breakthrough in bottleneck of＂expanding rights and endowing functions＂in rural land rights，we should firstly study separation of status right and property right，namely，the secondary separation of rural land rights.At present，researches of secondary separation of rural land rights aremainly remain at the assumption and suggestion level，and few researchesmake analysis and inference from jurisprudence.In this study，we try to analyze secondary separation of China's rural land rights from the perspective of analytical jurisprudence.

2 The theory of secondary separation comes from status plight of rural land right and function structure

From the historical perspective，rural land（including urban land）remains the status of coexistence of several ownership systems before the promulgation of Constitution in 1982.Apart from collective ownership，private ownership of land is recognized in Constitution and other laws in varying degrees.For the state of rural collective land ownership system，different scholars give different definitions.In general，there are three theories，public ownership，private ownership，and quasi-ownership.These three theories are concept at institutional level.They belong to ideological sphere，rather than scope of jurisprudence.Yan Yimei discussed the relationship between ownership system and ownership and stated that it is inadvisable to divide ownership in accordance with types of ownership system.The concept of private ownership is relative to non-private ownership.According to legal logic，ownership is the direct exclusive right of owner over his immovable or movable property.It is absolute，exclusive and perpetual.The concept of rights and functions in laws and jurisprudence refers to specific functions and realization method，and is specific content of rights.For example，the ownership takes possession，use，usufruct and disposal rights as content，while creditor's right includes request for repayment，reserve and execution for repayment，etc.Article 544 of Code Napoleon defined property as the right of enjoying and disposing of things in themostabsolutemanner，provided they are not used in away prohibited by the laws or statutes.Section 903 of Civil Code of Germany specifies that the owner of a thingmay，to the extent thata statute or third-party rights do not conflictwith this，dealwith the thing at his discretion and exclude others from every influence.The owner of an animalmust，when exercising his powers，take into account the special provisions for the protection of animals.＂According to existing laws in China，the disposal right ismainly restricted.Article117 of Property Law of the People'sRepublic of China specifies thata usufructuary right holder shallenjoy the right to possess，use and seek proceeds from the real property ormovable property owned by someone else according to legal provisions.Article 118 specifies that an entity or individualmay possess，use and seek proceeds from the natural resources that are owned by the state or that are owned by the state but used by the collective as well as those that are owned by the collective.Article 120 specifies that a usufructuary right holder shall，when exercising its or his right，abide by the provisions on protection，reasonable exploration and utilization of resources as prescribed in the laws.An owner shall not intervene in the exercise of rights by the usufructuary right holder.In Law of the People'sRepublic of China on the Contracting of Rural Land，Article 9 specifies that the state protects the legitimate rights and interests of the owners of the collectively-owned land，protects the contract-undertaking party's right to the operation of contracted land.No unitor individualmay infringe upon theses rightsand interests.Article 10 stipulates that the state protects the contractundertaking party's right to transfer the operation of the contracted land lawfully，voluntarily，and for compensation.Besides，according to existing lawsof China，state-owned land can be setwith construction land use right，easement and hypothec.These jus in re aliena basically realized complete rights and functions of stateowned land inmarketuse.In comparison，rural land rightsare incomplete in rightsand functions due to limitation of status.Taking hypothec asan example，themortgage and guarantee system of rural land use right is not established in real sense，and rural land that can bemortgaged is limited to use rightof township enterprise land，four types ofwaste land，and forest land.See Paragraphs5 and 6 of Article 34 and Article 36 in Guarantee Law，Articles133 and 138 of Property Law，Article 49 of Law of the PeoplesRepublic of China on Land Contract in Rural Areas，and MeasuresConcerning AssetsMortgage Registration of Forest Resources（for Trail Implementation）.According to Paragraph 2 of Article 180 in Property Law of the People's Republic of China，the following properties towhich the obligor or the third party has the right to dispose of may be used formortgage：（2）the right to use land for construction.Article 30 of the Guarantee Law of the People's Republic of China specifies that if legally-acquired buildings on State-owned lands aremortgaged，the land use rights of the land occupied by the buildings shall also bemortgaged at the same time.The land use rights of State-owned lands acquired through means of transfer，when beingmortgaged，the buildingson the land shallalso be mortgaged at the same time.The land use rights per se of the township and village enterprises cannot bemortgaged.When the buildings of the township and village enterprises are mortgaged，the associated land use rights shall also bemortgaged at the same time.Paragraph 2 of Article 184 in Property Law of the People's Republic of China stipulates that none of the following properties may be mortgaged：（2）the right to use cultivated land，house sites，land set aside for farmers to cultivate for their private use，hilly land allotted for private use and other collectively-owned land，unless it is otherwise prescribed by any law.These limitations of status make it difficult for capitalization of rural land rights.

If adjusting and explaining rural collective land ownership in the context of private law，the ownership should be taken an ownership with complete rights and functions.In other words，it has complete possession，use，usufruct，and disposal rights.Owners of collective land can independently dispose land they own.In this sense，the state can not intervene against setting and change of usufructuary rightwith its status of land owner.For example，state establishes rural land contractualmanagement rightas real right in legal form.This means that there is no dominance relation between holder and owner of rural land contractual management right.Two parties are equal in status and their relation can be adjusted.In China，rural land right is a bundle of rights.Because there is structural problem within the bundle，such structure will inevitably bring about conflict in effect.The settlementandmediation of this conflict is a limitation and coordination of rights and functions to a certain extent.Exiting lawsand regulationsof China have various limitations to establishment and circulation of rural collective land rights.As a result，rural collective land and stateowned land are circulated in urban areas and rural areas separately，and internal circulation of rural collective land is also limited by various conditions.These limitations are not proper in legal sense.Only after getting rid of restrictionsof such status，may the right and function structure head for unification with state-owned land right and function structure.

3 Hohfeld analytical jurisprudence

It is generally accepted that rural land right is a bundle of rights.The bundle of rights is a common way to explain the complexities of property ownership.The origin of this concept can be traced back to Hohfeld theory.The bundle of rights and narrow issue thinking of Llewellyn are typical cases influenced by Hohfeld theory［1］.The core part of Hohfeld theory is rights system.Hohfeld theory takesup important position in the entire schoolof analytical jurisprudence.In the theory，the most important articles of Hohfeld are two paperswith the same name Some Fundamental Legal Conceptions as Applied in Judicial Reasoning published in 1913 and 1917 respectively.In the paper，Hohfeld firstlymade discussion of trust and equitable benefit.In his opinion，the analysis of trust and equitable benefit of jurisprudents and judges at that time is not adequate，because it is not based on analysis of basic legal relation and concepts［2］.Hohfeld made a systematic analysis on basic legal concepts.Hohfeld integrated fictional terms of Bentham，such as right，power，privilege，duties and obligations into logical framework of fundamental legal concept relation，which brings logical relation of these basic concepts to a harmonious level in legal field，at least in the field of private law［3］.In the opinion of Hohfeld，the fundamental legal concepts and relation in strict sense should be suigeneri（of its own kind／genus）.In an expression consisted of inverse relation and correlation，Hohfeld showed the basic legal concepts and relation.He believed that basic legal concepts and relation are the lowest common denominators of other legal concepts and relation，and the complex legal concepts and relation are just different combinations［4］.Analysis of Hohfeld about property includes right，absence of right，privilege，duty，power，disability，immunity，liability.

4 Rural land right subjects w ith status and property right separated

The legal relation is a regulatory relation between legal subjects specified by laws［5］.In rural land right system of China，since many subjects are involved，the rural land relation is very complex，mainly including land relation between the state and collective，between the collective and individual（collectivemember），between the state and individual（collective member），and between individuals（collective members）.According to Hohfeld analytical jurisprudence，the rural land right relation can be described as follows：in the legal relation of right subject X and Y，Y is free to use land，namely，Y isnotobliged to use the land，so X is not entitled to force Y to use the land.Combining existing laws，there is no derived or subordination relation between state and rural collective land ownership，and there is no difference in level of rights between then，so the state and collective ownership doest not have complete rights and functions of ownership in the sense of private laws.Similarly，the subject of collective ownership is a group subject of collectivemembers and is a subject only in name，so the relation between rural collective and collective member is the same as the above.An ownership without freedom is obviously disabled in obtaining return of property rights and interests.However，after contractual right isseparated frommanagement right（or the status right is separated from property right），original circulation and transfer rightsof land break（status）institutional barrier and enter the market without changing the nature of ownership and realize the equality in substance.Besides，in private right field，it expands range of the relation between an individual（collective member）and another individual（collective member），namely，right relation within the collective is split into legal relation between individuals of collectivemembers，between collectivemember and external individual，and between collective member and external legal entities.In this case，subjects of contractual right and management right come from contract（contractual management agreement）.When contractors circulate their management right，themanagement right subject X will have right to ask contractual right subject Y to leave from their land.Then，rural land right subjectwill have the right in strict sense and become claim of rural land right.From the relation of rights，it is a legal relation conforming to logic，not limited to status institution and can be freely switched，and the relation adjusted and restricted by private laws.It can be deemed that land property right relation without status limitation is a legal relation with more right of speech in the sense of private law to a certain extent.

5 Types of rural right relationsw ith status and property right separated

Professor Wang Yong called four groups of related concept relation of Hohfeld rightsaselement form of legal relation.In hisopinion，for complex legal relation，the bestanalyticalmethod is to simplify it to the most fundamental legal relation.Like the mathematical principle＂any number can be changed to the sum of prime number＂，the difference is the prime number is infinite，while the there are only four types of legal elements.According to Hohfeld analytical system，the right relation includes right-duty relation，freedom-no-right relation，right-liability relation，and liabilityno-liability relation.The relation between rural land right subjects after the status right and property right（contractual right and management right）are separated can be described as follows：

According to the above table，the structural analysis of legal relation between subjects of rural land rights after secondary separation is as follows：

（1）Duty-right.

In the legal relation between owner of contractual management right and the collective，the owner of contractual management right has the right to use land，obtain land appreciation income，protect land right，and renew contract.For the collective，these rights are duties of the collective and the collective should not infringe upon rights of owner of the contractualmanagement.

（2）No right-freedom.

After the owner of contractualmanagement right obtains the collective contractualmanagement right，the owner of contractual management right is free to possess，use，and obtain profit of the land，while the collective has no right to order the owner of contractualmanagement right to take（or not take）these actions.

（3）Right-liability.

The owner of collective land still has the right to dispose the land he owns（take back the land，for instance），while the final disposal is restricted by new legal relation.

（4）No-right-no-liability.

The owner of contractual management right does not have right to dispose land.If he changes the land use and abandon the contracted land without authorization，it will not change the state of the collective's original right to use the land.In other words，the collective is not liable for illegal disposal of such owner of contractualmanagement right.

（5）The relation between the owner of collective land and the owner of contractualmanagement right.

When owner of collective contractualmanagement right transfers the contractual land to others through agreement，based on the reciprocity principle，he will obtain the equal rights and legal status in land use，possession，and usufruct as the owner of contractormanagement right.Through market transaction，the owner of contractormanagement rightobtainsequal subject status and final-ly realizes fair exercise of rights.In other words，on the condition of conforming to fundamental requirements of rural land ownership property and excluding disturbance of status，it increases property income of farmers and realizes the objective of reform of farmers'land right protection system.

6 Conclusions

（i）The circulation of rural land rights with social contract as source of rights gets rid of status limitation in logic and substance.In the limitation of existing laws，it provides equal transaction status for subjects of land rights and increases land utilization rate and opportunities and approaches for farmers obtaining land property appreciation.（ii）Secondary separation of rural land rights realizes rational return of collective land property right.The property rightwithout status notonly conforms to provisions of current institutions and laws，but also conforms to demands for land right protection and property pedigree theory.

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