The legal expression of the"separation of three rights"of the contracted land does not strictly follow the logic of private law,which leads to a lot of evaluating contradictions and normative conflicts after the entry into the law and the Civil Code,manifesting that it is difficult to apply the"separation of three rights"of the contracted land system to arable land,forest land and grassland as essentially different contracted land;the land management right has the characteristics of both debt and property right,and there is a limit to the interpretation of positioning it as a monistic debt or property right;the subject of the land contractual management right oscillates between farmers and family members of farmers;there are contradictions and conflicts between the"identity"of land contractual management rights and their transferability,the prohibition of adjusting contracted land during the contract period,and the protection of the property rights of farmers who have moved to urban areas.It is time to restart the research on the legislative theory of the"separation of three rights"on contracted land,reconstruct the rights system of the"separation of three rights"on contracted land under the constraints of the internal and external systems of the Civil Code,carefully sort out the normative clusters applicable to arable land,forest land and grassland,the system should clarify that the subject of the land contractual management right is a natural person,eliminate the identity attribute of the land contractual management right,and give the land management right established by way of leasing a partial property right effect,so as to truly consolidate and improve the basic rural management system and develop a new type of rural collective economy.
civil codecontracted land"separation of three rights"evaluating contradictionsnormative conflictslegislative theory
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