The imbalance among the functions of grassland contract management system and legal right structure featuring three rights division

DAI Qin1 YANG Hong2

(1.Law School of Inner Mongolia University)
(2.School of Law and Politics, Inner Mongolia Normal University)

【Abstract】The purpose of this article is to analyze the grassland contract management system and put forward corresponding solutions to the problems owing to the particularity of pastoral areas and grassland under the framework of three rights division of land. The analysis shows that the grassland contract management system has an ecological function, an economic function and a political function. However, there are many contradictions between the ecological function and the other functions. But among the functions, the ecological function is the most basic function, so it should take precedence over the other functions. The reform of three rights division of grassland provides a more effective way to solve the contradictions. That is to say, the grassland contract right is separated from the management right so that the grassland contract right exerts its political and social functions, the grassland management right exerts its ecological and economic functions. Under the view of ecological protection, the three rights reform should aim at protecting ecological environment and improving grassland production benefit reasonably, and reflect the priority effect of grassland ecological function in the legal right construction. In particular, the collective ownership of grassland should exercise the management power and the supervisory power; the grassland contract right should exercise the management power; and the grassland management right should give priority to protect the grassland ecology and reasonably improve the grassland management income. In the name of legal logic, the content and goal of the management right and the contract right are not in conflict, and it is not contrary to the principle of one thing, one right in real right law to endow them with the nature of usufruct right.

【Keywords】 grassland; contract management system; function; imbalance; three rights division; legal right structure;

【DOI】

【Funds】 The National Social Science Fund of China (18BFX184) Project of Theoretical Study of National Law-ruling and Law Science of Ministry of Justice of the People’s Republic of China (14SFB30032)

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(Translated by ZHANG Lei)

    Footnote

    [1]. ① In 1996, the people’s government of Inner Mongolia Autonomous Region issued the Regulations on Further Implementing and Improving the Two Rights and One System of Grassland in Inner Mongolia Autonomous Region to comprehensively carry forward grassland contract. Subsequently, other provinces (autonomous regions) followed such effort to issue relevant documents, with grassland contract carried out nationwide. The two rights and one system refers to the ownership of grassland (state ownership and collective ownership), the use right of grassland (grasslands owned by the state are determined to be used by collective economic organizations according to law) and the grassland contracting responsibility system. [^Back]

    [2]. ① Otor, a Mongolian term, refers to leaving the fixed camp to graze in the distance. During the nomadic period, the herdsmen are inclined to the otor in the following two cases. The one occurs in summer. In order to keep the grass on the fixed camp for winter, the herdsmen tend to graze on the remote standby camp after the green grass grows out in summer, and return to the fixed camp when the grass begins to wither. The other occurs for disaster avoidance. When drought and snow disasters come on the fixed camp, in case of natural disaster, herdsmen will move their livestock to the grassland that is not or less affected to avoid the disaster. The scope of the otor is not fixed in the case of disaster avoidance: when the disaster is serious, herdsmen may cross the banner (county), the league (prefecture-level city) or even the province with their livestock to find the grassland to avoid the disaster. [^Back]

    [3]. ① See articles 32, 34, 36, 39, 40 and 41 of the Law on the Contracting of Rural Land, http://www.china.com.cn/chinese/PI-c/196651.htm [^Back]

    [4]. ② See http://www.gov.cn/gongbao/content/2002/content_61781.htm [^Back]

    [5]. ① See Article 4 of the Law on the Contracting of Rural Land, http://www.china.com.cn/chinese/PI-c/196651.htm [^Back]

    [6]. ② See Article 15 of the Grassland Law, http://www.china.com.cn/chinese/PI-c/254249.htm [^Back]

    [7]. ① See http://www.xinhuanet.com/politics/2018-10/24/c_1123 603284.htm [^Back]

    [8]. ① Alxa League, Bayannur City, Xilin Gol League and Hulunbuir City in Inner Mongolia are all located in arid and semi-arid areas, where water resources are scarce and unevenly distributed. As there is no drinking water point on the grassland contracted by many herdsmen, they need to buy or transport water from water sources at different distances. Taking A Gacha, Sonid Left Banner, Xilin Gol League, Inner Mongolia, as an example, there is no drinking point on half of the grassland contracted by 105 households in Gacha, who need to prepare water trucks, water tanks and other equipment to buy water for both human and animals in the nearby households or the town center. Among them, 15 households have given up animal husbandry due to no water source on the contracted grassland and become livestock-less households. The difficult access to drinking water for human and animals becomes common in arid and semi-arid grassland areas of China (Han, 2011). [^Back]

    [9]. ① See successively articles 16, 17 and 14 of the Law on the Contracting of Rural Land, http://www.china.com.cn/chinese/PI-c/196651.htm [^Back]

    [10]. ② See successively articles 33, 45 and 48 of the Grassland Law, http://www.china.com.cn/chinese/PI-c/254249.htm [^Back]

    [11]. ③ See article 41 of the Law on the Contracting of Rural Land, http://www.china.com.cn/chinese/PI-c/196651.htm [^Back]

    [12]. ① See http://www.gov.cn/zwgk/2011-08/09/content_1922237.htm [^Back]

    [13]. ① See http://www.gov.cn/zhuanti/2017-10/27/content_5234876.htm [^Back]

    [14]. ② See Central Committee of the Communist Party of China and the State Council. http://www.gov.cn/zhengce/2016-10/30/content_5126200.htm [^Back]

    [15]. ③ See http://www.chinairn.com/news/20171123/134148585.shtml [^Back]

    [16]. ① See http://www.gov.cn/xinwen/2017-01/16/content_5160372.htm [^Back]

    [17]. ① See Article 44 of the newly revised Law on the Contracting of Rural Land, http://3g.163.com/dy/article/E4FAPLMM0519D9DS.html [^Back]

    [18]. ② See Article 13 of the Grassland Law, http://www.china.com.cn/chinese/PI-c/254249.htm [^Back]

    [19]. ① See successively articles 42, 45, 47 and 64 of the newly revised Law on the Contracting of Rural Land, http://3g.163.com/dy/article/E4FAPLMM0519D9DS.html [^Back]

    [20]. ① The Opinions on the Three Rights Division stipulates, the re-circulation of the land management right or the establishment of mortgage by the operating subject according to the law shall be under the written consent of the contracting households or their entrusted agents, and shall be recorded in writing to the peasants’ collective. See http://www.gov.cn/xinwen/2016-10/30/content_5126200.htm [^Back]

    [21]. ② See Article 40 of the newly revised Law on the Contracting of Rural Land, http://3g.163.com/dy/article/E4FAPLMM0519D9DS.html [^Back]

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This Article

ISSN:1006-4583

CN: 11-3586/F

Vol , No. 01, Pages 98-114

January 2019

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Article Outline

Abstract

  • 1 Functional orientation of grassland contract management system
  • 2 Imbalance among the functions of grassland contract management system and its legal manifestation
  • 3 Goal and significance of the reform towards three rights division of grassland
  • 4 Legal right structure of three rights division of grassland
  • 5 Conclusion
  • Footnote

    References