Policies and interpretations of the Forest Law of the People's Republic of China on forest land contract management
Article 17 Where collectively owned and state-owned forest land used by farmers collectively in accordance with law (hereinafter referred to as collective forest land) is contracted for management, the contracting party shall enjoy the right to contract management of forest land and the ownership of forest trees on the contracted forest land, and if the contract provides otherwise, such agreement shall prevail. The contracting party may, in accordance with the law, transfer the right to operate forest land, the ownership and use of forest trees by means of leasing (subcontracting), buying shares, transferring, etc.
Interpretation: This article is about the forest land contract management system, the rights of the contractor, and the transfer of forest land management rights, forest tree ownership and use rights.
(A) the forest land contract management system
The implementation of a two-tier management system in rural areas, which is based on household contract management and combines centralized and decentralized management, is the basic rural management system clearly stipulated in the Constitution. The Constitution, the Civil Code, the Land Management Law, the Rural Land Contract Law and other laws stipulate that cultivated land, forest land, grassland, and other land used for agriculture owned by peasant collectives and owned by the State shall be subject to the land contract management system in accordance with the law. In accordance with the provisions of the "Rural Land Contract Law", rural land contracting shall be in the form of household contracting within the rural collective economic organization, and rural land such as barren mountains, barren ditches, barren hills, and barren beaches that are not suitable for household contracting may be contracted by means of bidding, auction, public consultation, etc.
Collective forest land is an important land resource of the state, an important factor of production for forestry, and an important livelihood guarantee for farmers. In 2008, the "Opinions of the Central Committee of the Communist Party of China and the State Council on Comprehensively Promoting the Reform of the Collective Forest Tenure System" clearly stated: "On the premise of adhering to the ownership of collective forest land, the right to contract management of forest land and the ownership of forest trees shall be implemented to the farmers of the collective economic organization through household contracting, and the main position of farmers as the holders of forest land contract management rights shall be established." Therefore, in accordance with the relevant laws and regulations on rural land and the requirements of the central government, consolidate the achievements of the reform of the collective forest tenure system, protect the rights and interests of farmers in contracting, and implement household contracting of forest land, the family contracting method should be implemented, and the contract period is 30 to 50 years; Where it is not appropriate to adopt household contract management, other contracting methods are to be employed. The Rural Land Contract Law regulates in detail the principles and procedures of the two types of contracting, the rights and obligations of the contract issuer and the contractor, the protection of land contract management rights, the circulation of land management rights, the settlement of disputes and legal liabilities.
This article mainly stipulates the cohesive provisions on the forest tenure obtained by the forest land contractor under the household contract mode. First, it is linked to the "Rural Land Contract Law", which clarifies that if the forest land owned by the collective and the state and used by the peasant collectives in accordance with the law is contracted and managed, the contracting party shall obtain the right to contract and manage the forest land in accordance with the law. The second is to consider the characteristics of forestry production and operation, and the particularity of the ownership of forest trees on forest land compared with rural land such as cultivated land and grassland, and stipulate that the contracting party shall obtain the ownership of forest trees on the contracted land while enjoying the right to contract and manage forest land. However, if the contract provides otherwise, such agreement shall prevail. That is to say, if the contract stipulates that the trees on the contracted forest land are collectively owned or owned by other entities, the ownership of the trees shall be determined in accordance with the contract.
(2) The transfer of forest land management rights, forest ownership and use rights
Article 9 of the Rural Land Contract Law stipulates that: "After contracting the land, the contracting party shall enjoy the right to contract and operate the land by itself, or may retain the land contract right and transfer the land management right of the contracted land to be operated by others." Thus, the principle of "separation of powers" in rural land was established. After the forest land contractor obtains the contracted land in accordance with the law, it may transfer its forest land management rights, forest tree ownership and use rights in accordance with the law.
The particularity of forest land lies in the long growth period of forest trees on forest land, and the ownership of forest trees and the right to use forest trees can exist independently. The right to manage forest land, the ownership of forest trees and the right to use it can be transferred at the same time or separately. Generally speaking, if the management right of forest land is transferred, the ownership and use right of forest trees are transferred together. However, the contractor may also transfer the management right of the forest land separately and make a separate agreement on the ownership or use right of the forest. The parties may also agree not to transfer the management right of forest land, but to transfer the ownership or use right of forest trees alone.
The circulation methods stipulated in this article include: leasing, that is, the contracting party leases part or all of the forest land and forest trees to organizations or individuals other than the collective economic organization for forestry production and operation within a certain period of time; Subcontracting, that is, the contractor transfers part or all of the forest land management rights and forest tree use rights to other farmers in the same collective economic organization for a certain period of time to engage in forestry production and operation. Shareholding, that is, the contractor will convert part or all of the forest land management rights, forest tree rights and use rights into enterprises, farmers' cooperatives, family farms, etc., and obtain dividends with the forest land management rights, forest ownership and use rights of the shares. Transfer, that is, the contractor transfers part or all of the forest land management rights, forest ownership and use rights to other farmers of the collective economic organization in accordance with the law.
In accordance with the provisions of the Rural Land Contract Law, if the contracting party transfers the management right of forest land by way of transfer, it shall obtain the consent of the contract issuing party; If the contractor transfers the right to operate forest land in other ways, it needs to file with the contract issuing party. With the written consent of the contractor and filing with the collective economic organization, the transferee may re-transfer the forest land management rights. The contractor may use the right to operate the forest land to obtain financing guarantee from the financial institution. The transferee may obtain the forest land management right through circulation with the written consent of the contractor and file with the contract issuing party, and may obtain financing guarantee from a financial institution.
The circulation shall follow the following seven principles: first, in accordance with the law, voluntarily, with compensation, and consultation on an equal footing, and no organization or individual may force or obstruct it; second, the ownership and use of forest land shall not be changed; Third, the nature and protection level of public welfare forests shall not be changed; Fourth, the term of circulation shall not exceed the remaining term of the contract period; Fifth, the transferee must have the ability to operate forestry and reasonably develop and utilize it in accordance with the law; Sixth, under the same conditions, the members of the collective economic organization enjoy priority; Seventh, openness, justice and fairness.
Article 18: Collective forest land and forest trees on forest land that have not been contracted shall be managed by rural collective economic organizations in a unified manner. With the consent of more than two-thirds of the members of the villagers' meeting or more than two-thirds of the villagers' representatives of the members of the collective economic organization and publicizing it, the right to operate forest land, the ownership of forest trees and the right to use it may be transferred in accordance with the law through bidding, auction, public consultation, etc.
Interpretation: This article is about the transfer of rights to forest land and forest trees managed by collectives. This article clarifies the legal status of collectively managed forest land, and stipulates the procedures and methods for the transfer of the management right, ownership and use right of forest land under collective unified management.
(A) collective unified management of forest land
Collective forest land shall be contracted and managed in accordance with the law. However, due to a variety of reasons, many collective economic organizations still retain forest land that has not been contracted for management. The provisions of this article are applicable to such situations, and stipulate that collective forest land and forest trees on forest land that have not been contracted shall be managed by rural collective economic organizations in a unified manner. The unified management of forest land by rural collectives is an objective situation that has been inherited from history. In 2003, the "Decision of the Central Committee of the Communist Party of China and the State Council on Accelerating the Development of Forestry" proposed that the mountain forests that are still under the unified management of collectives should be treated differently, provided guidance by classification, and actively explore effective management forms. All joint-stock cooperative forest farms and joint forest farms with which the masses are satisfied and in good operating conditions should continue to maintain the stability of their business forms and constantly improve them. For other concentrated and contiguous forest land, the property rights can be gradually clarified to individuals in the form of "dividing shares without dividing mountains and profits without dividing forests". For scattered forested land, the ownership of forest trees and the right to use forest land can be transferred to individual management after a reasonable price. For barren mountains and wastelands suitable for forests, the business entity can be directly determined by means of subcontracting to households, bidding, auction, etc., or it can be developed by the collective in a unified manner, and then the business entity can be determined in an appropriate manner; For barren mountains and wastelands suitable for forests where afforestation is difficult, the right to use for a certain period of time can be transferred to capable units or individuals for development and operation free of charge through public bidding, but it must be set within a time limit. Either way, it must go through the democratic decision-making of the members of the collective economic organization and ensure the priority management rights of the members within the economic organization. In 2008, the "Opinions of the Central Committee of the Communist Party of China and the State Council on Comprehensively Promoting the Reform of the Collective Forest Tenure System" proposed that village collective economic organizations may retain a small amount of collective forest land, and the collective economic organizations shall implement democratic management in accordance with the law. At present, more than 70 percent of the country's collective forest land is contracted and managed by families and individuals, and 20 to 30 percent is managed by collectives and professional cooperatives, and 617 million mu of forest land is collectively managed (including 416 million mu of collective joint-stock management).
In order to adapt to the actual situation of the unified management of forest land by rural collective economic organizations, in order to clarify the forest ownership relationship related to this part of forest land, the revised "Forest Law" clearly stipulates: "Collective forest land that has not been contracted and the forest trees on the forest land shall be managed by the rural collective economic organizations in a unified manner."
(B) the collective unified management of forest land transfer procedures
In order to standardize the order of the circulation of forest land management rights, forest tree ownership and use rights under the unified management of rural collective economic organizations, and to protect the right to know, participate, supervise, make decisions and the right to benefit from collective assets of members of rural collective economic organizations, the law clearly stipulates that the circulation of collective forest land and forest ownership and use rights on forest land under the unified management of rural collective economic organizations shall be approved and publicized by more than 2/3 of the members of the villagers' meeting or more than 2/3 of the villagers' representatives of the members of the collective economic organization. Circulation through bidding, auction, public negotiation and other means. According to the Organic Law of Villagers' Committees, villagers' meetings are composed of villagers over the age of 18. If the land is contracted by a village collective economic organization or a villagers' committee, the "villagers' meeting" here refers to the villagers' meeting within the scope of the village collective, that is, the villagers' meeting composed of members of the village collective economic organization; If the land is contracted by the collective economic organizations or villagers' groups in the village, the "villagers' meeting" here refers to the villagers' meeting within the scope of the villagers' group.
According to the Organic Law of Villagers' Committees, villages with a relatively large number of people or scattered residences may set up a meeting of villagers' representatives to discuss and decide on matters authorized by the villagers' meeting. The "villager representatives" are elected by the villagers on a basis for every 5 or 15 households, or by a number of villagers in each village group.
(3) Circulation methods
1. Bidding. It is also known as bidding and bidding, which is a transaction method to promote efficiency and optimize resources under the conditions of market economy, and its fundamental principles are openness, fairness, justice and good faith. Under this transaction method, the rural collective economic organization or the villagers' committee is the bidding party; If the farmer collectives already belong to two or more rural collective economic organizations in the village, the rural collective economic organizations or villager groups in the village shall be the bidding party; Where the land is owned by the state and used by peasant collectives in accordance with law, the rural collective economic organization, villagers' committee or villagers' group using the land shall be the bidding party. The tendering party shall issue bidding information by issuing a bidding announcement or issuing a bidding invitation to internal members of collective economic organizations or external agricultural producers who intend to bid for contracting, indicating that it will select the agricultural producers and operators who can best meet the contracting requirements to sign a contract with it. Agricultural producers and operators who intend to contract shall be the bidders, and submit in writing to the tendering party that their conditions are consistent with the bidding requirements and participate in the bidding competition. After reviewing and comparing the conditions of each bidder, the tenderer selects the winning bidder and signs a circulation contract with it.
2. Auctions. This refers to the transfer of property rights in a specific thing to the highest bidder in the form of an open bid. An auction is an open bidding activity. The seller of the auction is called the "auctioneer" and the buyer participating in the auction is called the "bidder". The most important feature of auctions is their openness and competitiveness. An auction is a type of buying and selling in which a bidder puts forward various bids and accepts a certain bid through a specific method such as hammering through open competition. The openness and competitiveness of the auction are fully reflected in the auction procedure, which must go through three steps: the first step is that the auctioneer will disclose the type of auction item, the auction premises, the auction date and other necessary matters to the public. In the second step, the auctioneer auctions the specified items in public on the specified auction date and auction location. The nature of the auction dictates that the bidders must be more than one person. During the auction process, bidders bid for the highest price. The bidder's bid is binding on himself, but the bidder may withdraw his bid at any time before the auctioneer has made a bid. In the third step, the auctioneer makes a commitment to the bidder's expression of intent, which is called auction and is the auctioneer's intention to sell. The beating is often shown by hammering. After the auctioneer has shouted three times about the highest price offered by the bidder, and no one offers a higher price, he can hammer the auction. Once the auction is confirmed, the sale and purchase contract is concluded.
3. Open consultation. This means that the parties openly negotiate on the relevant matters of the circulation on an equal and voluntary basis, and finally the transferor and the transferee with the best circulation conditions sign the circulation contract in accordance with the law.
According to Article 52 of the Rural Land Contract Law, if the right to manage forest land, the ownership and use of forest trees under the unified management of the collective flows out of the collective economic organization, it shall be submitted to the township (town) people's government for approval after being voted and approved by the villagers' meeting or the villagers' representative meeting of the collective economic organization. Without the approval of the township (town) people's government, no circulation contract shall be signed.
19th collective forest land management rights circulation shall be signed a written contract. The contract for the transfer of forest land management rights generally includes the rights and obligations of both parties to the transfer, the term of the transfer, the price and payment method of the transfer, the disposal of the trees and fixed production facilities on the forest land after the expiration of the transfer period, and the liability for breach of contract.
If the transferee violates the provisions of the law or the contract and causes serious damage to the forest, woods or forest land, the contract issuing party or the contracting party shall have the right to recover the forest land management right.
Interpretation: This article is about the form and main content of the contract for the transfer of collective forest land management rights and the legal conditions for the recovery of forest land management rights.
(A) the transfer of forest land management rights
The circulation of collective forest land management rights includes not only the transfer of contracted forest land by the contractor after the implementation of household contracting, but also the circulation of collective unified management of forest land. After the transfer, the transferee obtains the right to operate the forest land and obtains the benefits in accordance with the law. Due to the long growth cycle of forest trees and the large investment during the period, a written contract should be signed for the circulation of collective forest land management rights, which comprehensively and specifically clarifies the matters agreed by both parties to the transfer, so as to clarify the rights and obligations of both parties, so as to facilitate the joint performance and fulfillment of commitments and reduce disputes between the two parties.
(B) the forest land management right transfer contract
The contract for the transfer of forest land management rights shall stipulate the rights and obligations of both parties. Article 40 of the Rural Land Contract Law stipulates that "a contract for the transfer of land operation rights generally includes the following clauses: (1) the names and residences of both parties; (B) the name, location, area, quality level of the land in circulation: (C) the period of circulation and the start and end date; (4) the use of the transferred land: (5) the rights and obligations of both parties; (6) the circulation price and payment method; (G) the land is expropriated, requisitioned, occupied in accordance with the law when the ownership of the relevant compensation; (8) Liability for breach of contract. Where the contracting party hands over the land to others for cultivation for no more than one year, it may not sign a written contract. "The contract for the transfer of forest land management rights should also have the above clauses. At the same time, taking into account the particularity of forest land, paragraph 1 of this article clearly stipulates that "the contract for the transfer of forest land management rights generally includes the rights and obligations of both parties to the transfer, the period of circulation, the price and payment method of circulation, the disposal of forest trees and fixed production facilities on the forest land upon the expiration of the circulation period, and the liability for breach of contract". Compared with the general land transfer contract, the forest land management right transfer contract requires both parties to agree on matters such as the disposal of forest trees and fixed production settings on the forest land after the expiration of the circulation period. This provision mainly takes into account the particularity of forests and avoids disputes arising from unclear agreements on rights and obligations.
(C) the resumption of forest land management rights
The transfer of forest land management rights is established on the basis of the willingness of both parties, and the two parties shall not terminate the contract at will. However, the law stipulates the circumstances under which the contract issuing party or the contracting party may terminate the contract. According to the provisions of the Rural Land Contract Law, the transferee may unilaterally terminate the contract for the transfer of land operation rights under any of the following circumstances: (1) changing the agricultural use of the land without authorization; (2) Abandonment of farmland for more than two consecutive years; (3) Causing serious damage to the land or seriously damaging the ecological environment of the land; (4) Other serious breaches. This clause stipulates: "If the transferee violates the provisions of the law or the contract and causes serious damage to the forest, woods or forest land, the contract issuing party or the contracting party shall have the right to recover the forest land management right." The situation of "causing serious damage to forests, woods and woodlands" here includes the destruction of forests and forests for reclamation, quarrying, sand mining, soil mining and other acts of destroying forests and woodlands in violation of the provisions of Article 39 of this Law, discharging sewage sludge with excessive content of heavy metals or other toxic and harmful substances into forest land, as well as dredging sediment, tailings and slag that may cause forest land pollution, cutting firewood, destroying seedlings and grazing in young forest land.
Article 20 State-owned enterprises, institutions, organs, groups, and troops shall manage and protect the forest trees by the construction units and dispose of the forest income in accordance with the provisions of the State.
The trees planted by rural residents in front of and behind their houses, on their own land, and on their own hills are owned by individuals. Trees planted in the courtyards of their own houses by townspeople are owned by individuals. Forests created by collectives or individuals contracted by the state and collectively owned by barren mountains and barren lands suitable for forests shall be owned by the contracting collectives or individuals; If the contract provides otherwise, such agreement shall prevail.
Forests planted by other organizations or individuals shall be owned by the builders in accordance with the law and enjoy the benefits of the trees; If the contract provides otherwise, such agreement shall prevail.
Interpretation: This article is a legal provision on the ownership of timber by the state, collectives, individuals and other right holders.
In order to speed up the process of land greening and ecological restoration, encourage all kinds of social entities to plant trees and invest in the development of forestry across ownership, industries and regions, and fully mobilize the enthusiasm of all sectors for afforestation, afforestation and forest protection, this article clearly stipulates in law that the forests to be created shall be owned by the organizations and individuals who create them. This article further clarifies the legal status of non-public forestry, and all capable peasant households, urban residents, scientific and technological personnel, private entrepreneurs, cadres and workers of enterprises, public institutions, and government agencies and organizations may participate in forestry development and engage in forestry construction individually or in partnership.
(1) Ownership of forests created by the state
Paragraph 1 of this article stipulates that the ownership of the forests planted by state-owned enterprises, institutions, organs, organizations and military forces shall be owned by the state, and the afforestation units shall be responsible for the management and protection of the forest trees and the disposal of forest income in accordance with the relevant provisions of the state. According to the results of the Ninth National Forest Resources Inventory (2014-2018), 37.92% were owned by the state, 17.75% by collectives, and 44.33% by individuals.
(2) Ownership of trees created by individuals
Paragraph 2 of this article stipulates that the trees planted by rural residents in front of and behind their houses, on their own plots and on their own hills, as well as by urban residents in the courtyards of their own houses, shall be wholly owned by individuals. This is part of the private property of the individual, and the individual shall enjoy the right to occupy, use, benefit and dispose of it, and shall be allowed to inherit it in accordance with the law, and the lawful rights and interests shall be protected by law.
(3) Ownership of forest trees contracted to be built
Paragraph 3 of this article is a provision on the ownership of contracting afforestation of barren mountains and barren lands suitable for forests. In accordance with the provisions of this paragraph, if a collective or individual contracts for afforestation of barren mountains and barren lands suitable for forests owned by the state or owned by the collective, the ownership of the forest land shall remain unchanged, and the forests planted after the contract shall be owned by the contracting collective or individual; If the contract has other provisions on the ownership and income of the planted trees, it shall be implemented in accordance with the provisions of the contract. Barren mountains refer to the forestable mountainous areas where the canopy density of trees is less than 10%, the surface layer is soil, and weeds grow; Wasteland refers to land that has not been cultivated for cultivation or has been cultivated and abandoned for a long time; Deserted beach refers to shallow beaches such as river beaches and beaches. State-owned barren mountains, wastelands, and barren beaches are important land reserve resources of the state, and developing them and engaging in planting, forestry, animal husbandry, and fishery production on them is an important way to increase the area of agricultural land and promote the development of reserve resources.
According to the provisions of the "Rural Land Contract Law", those who have obtained the right to operate the land suitable for forests, barren mountains, barren land, and barren beaches in rural land through bidding, auction, public consultation, etc., may transfer the land management right in accordance with the law. In the event of the death of the contractor, the contractor shall inherit the contract income due to him in accordance with the provisions of the relevant laws; During the contract period, their heirs may continue to contract.
(4) Ownership of trees created by other organizations and individuals
Paragraph 4 of this article stipulates that the forest trees created by other organizations and individuals shall be owned by the creator and shall enjoy the right to occupy, use, benefit from and dispose of. If the contract has other provisions on the ownership and income of the planted trees, it shall be implemented in accordance with the provisions of the contract.
It should be pointed out that the law clearly stipulates that the forests to be built belong to the organizations and individuals who create them, and their legitimate rights and interests are protected by the law and may not be infringed upon by any organization or individual.
Source: Heilongjiang Provincial Forestry and Grassland Bureau
