Recently, the land contracting incident in Jianhua Town, Kailu County, Inner Mongolia Autonomous Region, has attracted widespread attention. Is the "supplementary contract fee" disputed by the two sides applicable to the "change of circumstances" provision in the Civil Code? How to correctly solve similar problems encountered in daily life? Regarding the legal issues involved in this incident, a reporter from Huashang Daily Gale News interviewed relevant lawyers.
After the land contract is signed, the contract issuing party cannot unilaterally terminate the contract
Question 1: When the land contract has not yet expired, is it illegal for village and town cadres to obstruct the contractor's normal sowing of seeds, and what responsibility should they bear?
Lawyer Liu Kongsheng, senior partner of Shandong Chenze Law Firm: Article 23 of the Land Contract Law of the People's Republic of China stipulates that the contract shall take effect from the date of establishment, and the contractor shall obtain the right to contract and operate the land from the time the contract takes effect.
According to the above-mentioned provisions, the contract signed between the land contractor and the village committee came into effect on the date of its signing in 2004, and both parties should perform their contractual obligations in accordance with the contract. In the absence of a statutory reason, a village or town cadre obstructing the contractor's normal exercise of the right to contract and operate land is an act in violation of civil law and should bear the liability for breach of contract.
Lawyer Wang Cailiang, honorary director of Beijing Cailiang Law Firm: According to the provisions of the Land Contract Law, if a contract has been concluded, the contract issuing party cannot unilaterally terminate the contract.
Jia Yuting, a lawyer from Shaanxi Haogong Law Firm: When the land contract has not yet expired, the relevant personnel of Kailu County obstruct the contractor's sowing and delay the agricultural time, which is a serious illegal act.
In accordance with the relevant provisions of the Land Contract Law, after signing a contract, the contractor shall enjoy the right to contract and operate land in accordance with the law, including the autonomy of production and operation such as farming, and shall not be infringed upon by any organization or individual, and shall not interfere with the contractor's normal production and business activities in accordance with the law. Those who infringe upon the right to contract and operate land shall bear civil liability such as stopping the infringement, removing obstacles, eliminating dangers, returning property, restoring the original state, and compensating for losses.
Where a state organ or its staff member uses his or her authority to interfere with the contracted operation of rural land and causes losses to the contractor, he shall bear responsibility for compensation for damages; if the circumstances are serious, he shall be punished as the person directly responsible; and if a crime is constituted, he shall be investigated for criminal responsibility in accordance with law.
The contractor's change of land use is illegal but not harmful, and the employer's request for additional contract fees is not sustained
Question 2: The village and town cadres said that the contractor used to contract grassland, but now it has become irrigated land (cultivated land), so it is necessary to increase the contract fee, is there a legal basis for this?
Lawyer Wang Cailiang: The land disputed by the two parties involved in the case was originally grassland, but it was not included in the scope of grassland. In the case of grassland, it is not allowed to be cultivated without approval, because the grassland country has provisions of the grassland law to protect it. Judging from the notice issued by Kailu County, the disputed land does not belong to the destruction of the grassland, and in this case, the legitimate rights and interests of the contractor should be protected.
Lawyer Liu Kongsheng: There is no mandatory legal provision on such issues, and both parties should determine whether they need to supplement the contract fee according to the contract agreement.
Lawyer Jia Yuting: After the land contract is signed, the contractor shall exercise the right to contract and operate the land in accordance with the provisions of the law and the contract, shall protect and rationally use the land in accordance with the law, shall not cause permanent damage to the land, and shall not change the use of the land without approval.
After the signing of the contract for the operation of the land involved in the case, the use of the land involved in the case was changed due to the contractor's years of reclamation and cultivation, as well as the adjustment of the state's land use. In view of the change in the content of the contract caused by the act, the rights of both parties have been changed, so both parties have the right to negotiate the status quo after the change, and whether to adjust the contract fee or terminate the contract shall be determined according to the comprehensive factors such as the reason for the change, the subject of the change, and the legality of the change.
In other words, in this case, the contractor had changed the use of the land, which was an illegal act, but the illegal act did not cause permanent damage to the land and was not used for non-agricultural construction, but instead increased the fertility of the land, turned the saline-alkali land and wasteland that had no grass into cultivated land, and the state had also adjusted the land use to cultivated land, so the circumstances of the illegal act were minor and did not have social harm, and the corresponding legal liability should not be borne, so the demand for additional contract fees could not be established.
Question 3: The land contractor said that the land they had contracted before was saline-alkali land and wasteland, and there was no grass growing at all, and no one contracted for 5 yuan per mu of land that year. Is there a legal basis for their reluctance to pay the "supplementary contract fee" because they have invested a lot of money to level and fertilize the land that it is today, so they are unwilling to pay the "supplementary contract fee"?
Lawyer Liu Kongsheng: Whether it is necessary to supplement the contract fee depends on the contract between the two parties, and if there is no agreement in the contract or the agreement is unclear, it should be reasonably determined whether the additional contract fee is necessary according to the principle of fairness.
The conversion of grassland into cultivated land is caused by the contractor's input, and does not belong to a change of circumstances
Question 4: What is "change of circumstances"? What does the Civil Code say about this? Is the "change of circumstances" clause applicable in this case? and why?
Lawyer Jia Yuting: Article 533 of the Civil Code stipulates that after the conclusion of a contract, if the basic conditions of the contract have undergone major changes that were unforeseeable by the parties at the time of conclusion of the contract and are not commercial risks, and the continued performance of the contract is obviously unfair to one of the parties, the adversely affected party may renegotiate with the other party; The people's court or arbitration institution shall, in consideration of the actual circumstances of the case, modify or terminate the contract in accordance with the principle of fairness.
In this case, the contractor invested a large amount of money to level and fertilize the land, and the use of the land involved in the case was changed from saline-alkali land and wasteland (forest and grassland) to cultivated land. Since the cause of the change is caused by the unilateral act of the contractor and not by other unforeseeable objective causes, the act is not a change of circumstances. However, the act of changing land use due to national policy reasons is a change of circumstances.
Lawyer Wang Cailiang: The so-called change of circumstances is not suitable for the situation in this case, because it is the land user who has turned the wasteland into arable land through his efforts, and the proceeds should go to the investor, not to the contractor, which is very clear. The employer's consent is required to terminate the contract separately on this ground, or to request an increase in the contract fee.
Lawyer Liu Kongsheng: The nature of the land in this case is a completely foreseeable change between the two parties at the time of signing the contract due to the change in the operation and management of the contractor, and it is not a change of circumstances, and the relevant provisions on change of circumstances are not applicable to deal with the contract between the two parties.
In the event of a "change of circumstances", the parties shall negotiate or litigate
Question 5: Should there be a conflict between the village collective and the land contractor due to the change in the nature of the land, and how should similar problems be correctly resolved?
Lawyer Liu Kongsheng: If a dispute arises due to land contracting, the parties can resolve it through negotiation, or they can request the villagers' committee and the township (town) people's government to mediate. If the parties are unwilling to negotiate or mediate, or if the negotiation or mediation fails, they may apply to the rural land contract arbitration institution for arbitration, or they may directly file a lawsuit with the people's court.
Any organization or individual that infringes upon the right to contract and operate land or the right to operate land shall bear civil liability. According to the above provisions, any party to the land contract has no right to take self-remedies in non-emergency situations, otherwise it will be an infringement of the rights of the other party to the contract.
Lawyer Jia Yuting: In life, when we encounter the problem of "change of situation", the two parties should understand each other, and negotiate to change the content of the contract or terminate the contract in accordance with the principles of good faith, fairness and voluntariness.
Question 6: As mentioned in the circular, if the land contractor actually changes the land use agreed in the contract, resulting in a change in the nature of the subject matter of the contract, is this act illegal? Does the employer have the right to unilaterally terminate the contract?
Lawyer Jia Yuting: The contractor's change of land use is an illegal act. Article 27 of the Land Contract Law stipulates that during the contract period, the contract issuing party shall not take back the contracted land. If the use of the land is changed and damage is caused to the land, the contractor shall bear the corresponding legal responsibility. If the land operation right is transferred, the subcontractor has the right to terminate the contract.
Huashang Daily Gale News reporter Chen Youmou editor Dong Lin
(If you have any news, please call the news hotline of Huashang Daily at 029-8888 0000)