The Impact of Urbanization on Farmland: Is Division of Right to Contracted Management of Land a Reasonable Way Out?

Abstract

China is undergoing unprecedentedly rapid urbanization. The migration of squatters from rural to urban areas not only puts pressure on the supply of urban land and public facilities, but also has profound impacts on the use and management of rural land property. The most obvious and important representation of this situation is the large scale of farmland transfer. In this situation, the real manager of contracted land and the original contractor will no longer be the same. As a response to that, scholars put up with the idea to divide right to contracted management of land (Hereinafter referred to as RCML) into contract right and management right, which is further verified by central government in Central Document NO. 1 of 2014 and 2015. The perspective of jurisprudence and institutional changes will prove that, however, division of RCML won't be a reasonable reform path. For one thing, the so called division of RCML completely lacks jurisprudence foundation, embodying the confusion of the characters of different law systems from the macro level, and violation of right creation theory from the micro level, meanwhile it confuses members' right and property right. For another, the division of RCML will confront with large institutional changes cost, which makes it infeasible. This paper thinks that a feasible reform path should be proposed based on our own theory of law system, and it must take farmers, transferees and collective all into account to construct a more comprehensive plan.