The deep-seated problems hidden behind the "supplementary contract fee" of cultivated land are typical and worthy of serious consideration from a legal perspective.
▲The media visited the scene of the "supplementary contract fee" incident of cultivated land. Picture/"China's Three Rural Release" video screenshot text | Cai Lewei
Recently, the "Strange Supplementary Contracting Fee in Kailu County, Inner Mongolia" exposed by the "China Three Rural Release" incident quickly attracted widespread attention from public opinion. After the fermentation of public opinion, the local government also responded quickly and issued several notices to explain the relevant situation.
From the perspective of public opinion, people's attention to this incident seems to focus on the bold remarks of the township cadres in the video. In reality, however, the issues behind this incident do not end there, and they involve whether it is legal for the village committee to collect paid fees for the use of new cultivated land from contractors, and whether it can forcibly stop farming, and whether the local government can charge paid fees for the use of all newly added cultivated land on the grounds of "carrying out pilot work on the efficient use of newly added cultivated land", or even plan to change or terminate the rural land contract separately.
Compared with the improper practices of township and town cadres, these deep-seated problems hidden behind the incident are more typical and worthy of serious consideration from a legal perspective.
Disputes over land contracting and operation under the intervention of administrative power
According to media reports, in this incident, because the contractor refused to pay 200 yuan/mu of paid fees for the use of new cultivated land as required by the employer, the cadres of the village committee of Shuangsheng Village, Jianhua Town, Kailu County, and the staff of the town government stopped the contractor's farming behavior, and gradually developed to the point that the police forcibly summoned individual cultivators.
On the face of it, this is a dispute between the staff of Jianhua Town and Shuangsheng Village to prevent the contractor from cultivating the land. But the fierce scene of preventing farming is only the surface of the problem, and the deeper problem is hidden.
The reason behind this is that the contractor believes that it has the right to cultivate according to the land contract, while the contractor, Shuangsheng Village, argues that the contractor needs to pay additional fees for the use of cultivated land because of the new cultivated land within the contracted land, and the town government is on the side of the contractor, supporting the viewpoint of the contractor and jointly preventing farming.
It can be seen that, from a legal point of view, this is a rural land contract dispute caused by the contract-issuing party wanting to collect additional paid fees for the use of cultivated land in addition to the contract, and the role played by the town government in this dispute has made this dispute evolve from a relatively simple civil dispute to a rural land contract dispute with direct intervention of administrative power.
There is no legal basis for collecting fees for the use of newly added cultivated land
Kailu County, as a pilot unit for the efficient use of newly added cultivated land determined by the superiors, formulated the "Guiding Plan for Promoting the Efficient Utilization of New Cultivated Land in Rural and Pastoral Areas in Kailu County" in accordance with the procedures, and carried out the pilot work of efficient utilization of the newly increased cultivated land in the "three land adjustments" compared with the "second land adjustment". The issue of cultivated land charges that netizens are concerned about is actually one of the disposal methods adopted for the newly added cultivated land in the pilot program for the efficient use of new cultivated land in Kailu County, that is, "improving the contract and collecting paid use fees", rather than charging for the land whose rights have been confirmed in the second round of extensions.
However, the key lies in whether there is a legal and policy basis for the paid use fees of newly added cultivated land collected by village collectives. In this regard, the conclusion is clear: there is no legal or national policy basis for charging such fees.
First of all, there is no provision in the Rural Land Contract Law and related laws and regulations that stipulates that the rural land contract issuer may charge additional "paid use fees" for the contractor for improving the land and increasing the cultivated land during the contract period.
On the contrary, the law stipulates that "the State shall protect the legitimate rights and interests of collective landowners and the contracting party's right to contract and operate land, which shall not be infringed upon by any organization or individual". The contract-issuing party's collection of paid fees for the use of newly added cultivated land during the agreed contract period is precisely an infringement of the right to contract and operate land.
Secondly, the "Opinions of the State Council on Promoting the High-quality Development of Inner Mongolia and Striving to Write a New Chapter of Chinese-style Modernization" (Guo Fa [2023] No. 16) cannot be used as a basis for charging "paid royalties".
The document stipulates: "Improve the service system for the circulation of land and pasture management rights, and explore and carry out pilot projects for efficient use on the basis of promoting the registration and issuance of certificates for the confirmation of new cultivated land rights", but does not mention any charging issues.
In addition, the newly added cultivated land referred to in the document is the cultivated land that needs to be registered for confirmation of ownership, not the contracted land that has been contracted and operated before the conversion into cultivated land, as in this case.
The villagers' representative meeting does not have the right to change the effective contract without authorization
According to the notice of Kailu County, in accordance with the requirements of the policy document, Shuangsheng Village implemented the procedure of "four discussions and two disclosures", and formed a resolution of the villagers' representative meeting, deciding that the contractor households with new cultivated land should in principle improve their original land contracting contracts according to the cultivated land, and charge a paid use fee of 200 yuan per mu per year, and the fees paid will be distributed and used by the village collective, and the land will be handed over to the original contractor to continue to operate.
However, the villagers' representative meeting may not infringe upon the contractor's legally obtained right to contract and operate land, and may not change the land contract that has already taken effect without authorization. In this regard, the Rural Land Contract Law has clear provisions.
The Organic Law of Villagers' Committees makes it clearer that villagers' self-government charters, village rules and agreements, and decisions of villagers' meetings or villagers' representative meetings must not contradict the Constitution, laws, regulations, and state policies, and must not infringe upon villagers' personal rights, democratic rights, and lawful property rights.
Therefore, it is not in accordance with the law to use the resolution of the villagers' representative meeting as the basis for collecting the new cultivated land use fee.
Moreover, the circular claims that for large-scale separately newly added cultivated land plots, according to the "change of circumstances" clause of the Civil Code, "the village collective and the contractor shall negotiate to change the contract, and if the negotiation fails, the people's court or arbitration institution shall be requested to terminate the contract and take back the unified management", which itself has no legal basis.
This is because the contractor's new cultivated land by improving the land is not a major change in the basic conditions of the contract that cannot be foreseen by the parties at the time of conclusion of the contract and is not a commercial risk as referred to in the relevant provisions of the Civil Code. The so-called change of circumstances does not exist, so what is the reason for renegotiation?
However, even if the situation of "change of circumstances" is established, if the two parties fail to reach an agreement, they can only apply to the people's court or arbitration institution to deal with it, how can the employer unilaterally decide to collect "paid royalties" and forcibly stop farming after the fees are not paid?
Township governments should not easily intervene in land contract disputes
Public information shows that the obstruction of the contractor's farming behavior objectively exists, and the people involved in the obstruction include village committee personnel, township cadres, and police officers from public security police stations.
In this regard, the local notice explained that it was "discouraging the act of raking", and emphasized that the contractor was not a local villager, and that it had actually changed the land use agreed in the contract, and that most of the land involved in the case had been subleased to others for operation and the annual rent per mu was more than 700 yuan, and the contractor had always been unwilling to pay the new cultivated land use fee.
However, none of the above-mentioned circumstances highlighted in the circular is a valid reason for the town government staff to forcibly prevent the contractor from farming.
According to the provisions of the "Rural Land Contract Law," persons outside the collective may contract land in accordance with the law; the sublease of land by the contracting party is also in accordance with the provisions of the law and the provisions of the contract; whether the contracting party has changed the use of the land agreed in the contract depends on the specific provisions of the contract.
Even if it is illegal for the land contractor to improve or reclaim the contracted land into cultivated land, it should be investigated and dealt with by the relevant state organs in accordance with the law, and the investigation and punishment of the illegal acts cannot be replaced by the so-called "paid use fees" collected by the contract issuing party.
What's more, judging from the information disclosed so far, there is no evidence that the contractor's land reclamation and cultivation is illegal.
As for the issue of township people's governments' involvement in preventing farming, according to the Rural Land Contract Law, if a dispute arises due to land contracting, the parties concerned may resolve it through negotiation or request the villagers' committee or the township (town) people's government to mediate.
Therefore, at the request of both parties, the township people's government may participate in the settlement of land contract disputes, but the means of settlement are limited to mediation. Without the request of both parties, the township people's government shall not intervene, let alone forcibly prevent farming.
In this case, it was clear that the township people's government had violated the relevant laws and regulations by intervening in the contract dispute and forcibly preventing cultivation without the request of both parties.
The content of the guidance plan for new cultivated land in Kailu County is illegal
According to the notice of Kailu County, as a pilot unit for the efficient use of new cultivated land determined by the superiors, Kailu County has formulated the "Guiding Plan for Promoting the Efficient Use of New Cultivated Land in Rural and Pastoral Areas in Kailu County" in accordance with the procedures, and carried out pilot work on the efficient use of cultivated land newly increased by the "three land adjustments" compared with the "second land adjustment".
Combined with the information disclosed by the media and the report of Kailu County, it can be seen that the dispute between Shuangsheng Village, Jianhua Town, Kailu County, and the contractor Zhang, and even the involvement of the local town government in the land contract dispute between the village collective and the contractor, are only the appearance of the problem, and the town and village levels are only working in accordance with the requirements of the relevant documents of the county.
Therefore, the above plan in Kailu County is the root cause of the problem. However, the plan's approach of "improving contracts and charging paid royalties" for newly added farmland is also illegal.
The "Notice of the General Office of the State Council on Strengthening the Formulation, Supervision and Management of Administrative Normative Documents" clearly stipulates that after the administrative normative documents are deliberated and approved or approved, they shall be uniformly registered, numbered and issued by the formulating organs, and shall be publicly released to the public through government gazettes, government websites, new government media, newspapers and periodicals, radio, television, and bulletin boards, etc., and shall not be issued and implemented in the form of internal documents, and administrative normative documents that have not been published shall not be used as the basis for administrative management.
At present, there is no evidence that the guidance plan for Kailu County has been publicly released. Accordingly, if the plan is an internal document, it shall not be implemented externally, and if it is a normative document, it violates the requirements of the above-mentioned documents of the State Council Office for public release, and thus cannot be used as a basis for administrative management.
More importantly, the plan increases the obligations of citizens, legal persons and other organizations without a superior legal and policy basis, violates the principle of administration according to law, and is itself illegal regardless of whether it has been publicly announced.
Ignoring the law and competing with the people for profit will eventually hurt the local economy
As mentioned above, the essence of the dispute in this case is a dispute over a rural land contract. But behind it, it is not simply a dispute in the process of contract performance.
According to information from media surveys, more than 400,000 acres of new farmland have been added to the local area, and the town government has demanded that all cultivated land be charged paid use fees. If this kind of fee can be charged in full according to the standard of 200 yuan/mu, the amount involved is as high as more than 8,000 yuan per year. For an ordinary township, this amount of money is not insignificant.
We have no way of knowing the final destination and purpose of the "royalties" collected locally, but there is no legal basis for this practice, regardless of whether it is owned or used by the village collectives concerned.
The description in the local notice that "Zhang Moulin has subleased most of the plots to others for operation, with an annual rent of more than 700 yuan per mu", may confirm the background of the paid use fee for the new cultivated land: after the land was reclaimed or improved into cultivated land by the contractor, its value increased, and the sublease rent was as high as more than 100 times the contract fee.
It is against this background that the local government began to collect paid fees for the use of new cultivated land under the slogan of "efficient utilization", which is inseparable from the additional charges. In essence, this kind of charging behavior is a typical act of conceiving a name and competing with the people for profit, which violates both the law and the spirit of the contract.
It should be noted that such an act is not an individual act of the village involved in the case, but involves a large amount of local land, a large number of farmers and contractors, and is supported by the documents of the relevant local government.
The existence of this phenomenon will seriously damage the local rule of law, damage the credibility of the government is huge, and the impact on the local business environment is also fatal.
What is most worrying is that the local government does not seem to be aware of the illegality and severity of the consequences of such acts, and has issued a series of circulars to explain it, without the necessary reflection on the legality of its own actions.
It must be recognized that if a locality ignores the legal provisions and contract agreements for a long time and sets up a false name and competes with the people for profit, then not only will the legitimate rights and interests of the relevant parties not be protected, but the local economic development will eventually be damaged.
Written by Cai Lewei (Teacher, China University of Political Science and Law)
Editor / He Rui
Proofreading / Li Lijun
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