Conflict and Coordination between the Right of Termination and the Right of Recovery in the Transfer of Land Management Rights by Contracted Farmers
Article 42 of the Law on Land Contract in Rural Areas regarding the right of termination and Articles 37 and 38 of the Land Administration Law concerning the right of recovery exhibit a clear conflict in terms of the legal effect on the extinguishment of land contracting and management rights.This specifically involves the clash between the principles of stabilizing contracting relationships and protecting national food security.In addition,it fundamentally represents a conflict in the applicable hierarchy between private law norms and public law norms when adjusting the same legal relationship.The theories of prioritizing the right of termination or the right of recovery,or the option theory,have not resolved the issue.According to modern legal perspectives,the conflict and coordination between the right of termination and the right of recovery should be placed within a unified public-private framework,determining two applicable types:"private law as the primary source,public law as supplementary"and"public law as the primary source,private law as supplementary."Specifically,regarding the grounds for abandoning cultivation for more than two consecutive years,they should be narrowly interpreted as circumstances of anticipated breach of contract that justify termination.For the grounds related to changing the use of agricultural land,they should be narrowly interpreted as situations where land is reclaimed without compensation only when the use is changed and specific conditions are met.
land management rightsland contract management rightsright of terminationright of recovery
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