How to solve the problem of property right division in the process of land acquisition by partnership?

On the defects and countermeasures of China's land contractual management right-also on the necessity and urgency of establishing superficies and permanent tenancy rights (I)

I. Introduction In the chapter "Civil Rights" of General Principles of Civil Law of People's Republic of China (PRC) and Civil Law of People's Republic of China (PRC), the right to contracted management of land is defined as a right related to property ownership, which has become a new type of property right in China's civil law. Subsequently, this right was widely used in practice. Theoretically, the right to contracted management of land is described as "the pioneering work of civil legislation in China" and praised. It should be admitted that this is an unprecedented new civil right in the history of civil law development, and its nature, content and legal characteristics are "novel". But it is this so-called novelty that makes such a concept different from any concept of real right in the history of civil law, and it is impossible to accurately define its true connotation and extension, which makes the connotation of such a legal concept uncertain and causes undue confusion in judicial practice. Among them, the most important problem is that the boundary between superficies and permanent tenancy rights is confused, and it is impossible to distinguish the legal differences between these two concepts of civil rights. In the process of formulating People's Republic of China (PRC) Property Law, it is undoubtedly of great significance for us to study seriously and realistically the legal difference between superficies and permanent tenancy rights, the mistakes in the concept of land contractual management rights, and the boundary between it and another new concept created by General Principles of Civil Law, namely the concept of land use rights. Two. The typical case 1996, which most obviously reflects the concept defect of the right to contracted management of land, is that the Xiamen Intermediate People's Court and the Fujian Higher People's Court decided Huang v. Houcun Committee of Heshan County, Xiamen City for compensation for land acquisition. The details are as follows: Xiamen Intermediate People's Court (1996) No.2 civil judgment found that Huang and the third person Chen Hejiyuan contracted the planting and management of more than 50 mu of land in the back village committee of the county on 1985 1 * *, and both parties signed a "contract" and contracted the money every year. At the beginning of 1986, Huang, Chen Heji established a joint venture relationship with the 10th Regiment of No.1 Agricultural Division of Xinjiang Construction Corps to jointly manage and plant the "Xiamen Tianshan Grape Experimental Site". 1June 1987, Chen Heji moved to Hong Kong and did not participate in investment. In July of the same year, the Tenth Corps transferred its equity to Huang. When Chen Heji learned about it, he asked Huang to jointly manage the experimental field. On June 1989, the two sides signed the agreement of "* * * jointly contracting Tianshan grape experimental field", and both parties agreed that Chen Heji would stage it. After that, Chen Heji paid Huang an investment of 57,300 yuan. On June 5438+1October 65438+May of the same year, Chen Heji withdrew from the partnership, and the two parties signed the Transfer Operation Agreement, stipulating that Huang would return all the investment funds of Chen Heji, and Huang would operate the experimental field independently and be responsible for its own profits and losses. The relationship between Huang and Shi Tuan has nothing to do with Chen Heji. A dispute between Hou Huang and Chen Heji over the return of investment funds was settled through mediation by the People's Court of Huli District, Xiamen. Hou Huang promised to repay all debts of the investment funds of the 10th regiment, and signed the Decision on Relevant Economic Agreements after the Transfer of Xiamen Tianshan Grape Experimental Site on June 30th, 1994+065438, and the creditor-debtor relationship between the two parties ended. This experimental field is run by Huang alone. 1994 1 due to the need of national construction, orchards managed by Huang were expropriated, and the state paid land acquisition compensation 3,230,090.28 yuan, including 39,565,438 yuan for young crops, 365,438 yuan for overground objects and 0,700,90.30 yuan for water conservancy facilities. All the money was given to Huang by the village Committee after arriving at the county, except 90 thousand yuan, and the rest was kept by myself. Huang repeatedly approached the village committee after the county to negotiate the payment, but was rejected by the village committee after the county on the grounds that Huang had a dispute with Chen Heji. Huang will appeal to the court. The Xiamen Intermediate People's Court held that Huang was expropriated for national construction in the process of contracting more than 50 mu of land for planting fruit trees in Houcun Village Committee of the county alone. According to the relevant provisions of land acquisition compensation, the plaintiff's due part should be owned by him. It is unreasonable for the defendant to object to the plaintiff's original partner and refuse to pay compensation. The plaintiff asked the defendant to pay the compensation for young crops as agreed by both parties and recover the loss of delayed interest. The reason is sufficient and should be supported. The third party originally contracted with the plaintiff to plant orchards, but both parties withdrew from the partnership through negotiation in June 5438+0989+00, which was confirmed by court mediation, and has now been implemented. It is now proposed that it still enjoys the same beneficial right as the plaintiff in land acquisition compensation, and the reason cannot be established. Therefore, it is judged that the village committee after the county becomes legally effective and pays the plaintiff 222 1 982.70 yuan and interest; Reject the claim of the third person Chen Heji. The facts identified in the civil judgment of Fujian Higher People's Court (1996) Min Min Zhongzi No.38 are basically the same as those identified in the above judgment of Xiamen Intermediate People's Court. The final judgment holds that the state should compensate the grapes, fruit trees and ground attachments needed for its planting and operation in accordance with relevant laws and regulations when requisitioning orchards contracted by Huang for construction. After the county, the village Committee got the land compensation fee, labor resettlement compensation fee, water conservancy facilities compensation fee and lost time compensation fee from the state because of the expropriation of land. In addition, from the compensation payable to Huang by the village committee after the first trial in the county, four tenths of the compensation for young crops agreed by both parties and some compensation for site leveling and soil replacement have been deducted. The Houcun Committee of Guxian County appealed to participate in sharing the above compensation paid by the state to Huang, which lacked legal basis and could not be supported. Houxian Village Committee should return the compensation fee to Huang. Chen Heji withdrew from the partnership contract on 1992, claiming that the above compensation paid by the state to Huang could not be supported. Therefore, the law applied to the original judgment is correct, and the original judgment is upheld except for correcting some improper expressions in the judgment. After the judgment of this case, many people think that the judgment is unfair, and the village committee behind the county thinks that the judgment infringes on their legitimate rights and interests on the land and defends their own claims. The fundamental reason for this disagreement in this case is that the connotation and extension of the concept of land contractual management right itself are unclear, that is, whether Huang's rights arising from contracted land are permanent tenancy rights or superficies. If the contract produces the right of permanent tenancy, such a judgment is wrong; If the contract produces superficies, then the court's decision is correct. However, in the land contractual management right, it does include the content of permanent tenancy right and superficies right, but it is confused with the concepts of land use right, afforestation right and homestead use right in Chinese law, and it is impossible to draw a clear line between them accurately. This paper attempts to analyze the legal differences between permanent tenancy and superficies in detail, and draw a clear line between the contracted management right of land and the concepts of land use right, afforestation right and homestead use right. It is suggested that unscientific legal concepts should be resolutely abandoned and the concepts of permanent tenancy and superficies should be confidently adopted when formulating the Property Law of People's Republic of China (PRC), so as to maintain the scientific, rigorous and accurate concepts of our civil law. Third, the different development history of permanent tenancy and superficies. Forever tenancy and superficies are usufructuary rights among other real rights (Note: It should be noted here that "real rights related to property ownership" are usufructuary rights according to the general principles of civil law, excluding security rights, so they are not the concepts of other real rights. ) the concept of subordinates. Their emergence and development have a unique history. Marxist jurisprudence holds that law is not born out of thin air, but is "rooted in the relationship of material life" (Note: Selected Works of Marx and Engels, Volume 2, People's Publishing House, 1972, p. 82. "It's just a requirement to show and record economic relations." (Note: The Complete Works of Marx and Engels, Volume 4, People's Publishing House, 1958, p. 122. The correctness of this assertion can also be proved by investigating the historical evolution of permanent tenancy rights and superficies. (1) The development history of permanent tenancy and superficies abroad. In primitive society, primitive people lived and produced by people linked by blood relationship. The first individual can only regard himself as the owner and possessor of this * * * one. (Note: The Complete Works of Marx and Engels, Volume 46 (Volume I), People's Publishing House, 1979, p. 472. At this time, private ownership has not yet appeared, there is no law, there is no concept of ownership, and of course there will be no permanent tenancy and superficies. Until the end of primitive society, with the expansion of social production and the development of exchange, it promoted the development of private ownership, disintegrated primitive society, produced the slave owner private ownership of the state and slave society, and produced laws to regulate this private ownership economy, confirming and protecting the property ownership of slave society. In the process of ownership, social life relations and economic relations have undergone fundamental changes to adapt.

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