Abstract: The protection of rural women's land rights and interests is one of the hot issues in China. From the perspective of human rights, the protection of rural women's land rights in China reflects the initial orientation of legalizing land system, an increasing awareness of treating rural women as independent individuals in rural society, and the evolving characteristics in the development of human rights. For the further protection of rural women’s land rights and interests, it is suggested to consider the following aspects, such as focusing on the fundamental rights, taking more considerations on gender equality during legislation, formulating the bottom line thinking, and properly narrowing down regulatory effects of rural regulations and agreements.

 

Keywords: Human rights; land rights and interests;  rural society; equal protection

 

 

Land is the most important community resource, which forms the basis for human existence. It is the starting point in a society to formulate the land distribution system, and plays a leading role in community governance of a country. Farmers’ land rights have been the most sensitive and heated issues in China. The per capita possession of land is low, and only 45.23% of the population enjoy the disposition of land resources.¹ The life of people living in rural areas can be guaranteed by national food security, and sharing the economic development to benefit all the people.²

 

With respect to farmers' land rights, the protection of the rights of the rural women have been a weaken point. To some degree, rural China is still a traditional community, in which male-dominated family is the basic unit of the community. It played a positive role in protecting social stability from the 80's of the last century, from when began the family contract responsibility system that fits the characteristics of the local society, maintained the rural land social security and promoted the economic growth. However, with great social transformation and environmental changes, China is in the industrialization development stage, in which industrialization and urbanization have promoted the fast growth of the economy, but at the same time necessitates large land holdings. Farmland is turned into construction land for profits. The system failed to effectively define value-added land interests and its distribution. Conflicts existed on various value-added land interests. On the one hand, limited land resources have resulted in the increase of the land value; on the other hand, a better regulatory system and effective distribution of interests have not been formulated. Under such circumstances, the common and traditional patriarchal cognition of the rural society and the existing land system could be changed into a value-added tool for resource allocation, which may possibility violate the women’s land rights. 

 

In recent years, the Central Government has successively carried out some land reforms, including issuing documents and guidance. In August 2015, the State Council issued Guidance on the Pilot of Rural Land Contracting Right and Farmer’s House Property Mortgage Loan, which launched the "two powers" experimental work of mortgage. In 2016 the Central Government issued The Opinions of The CPC Central Committee on the Implementation of New Ideas for the Quick Development of Agricultural Modernization and the Goal of Realizing Comprehensive Well-off Society, which is also known as “2016 No.1 Document of the Central Government.” The document clearly states that it is necessary to encourage the development of joint-stock cooperation, guiding owners of voluntary land ownership to buy the shares of leading enterprises and enhancing agricultural cooperation. The farmers, who have settled in towns, are entitled to maintain the rights, such as, contractual right of land, right to the use of curtilage, and collective rights to income distribution. The documents are implemented to guide the voluntary transfer of these rights, and to advance the pilot of mortgage loans safely and orderly. It also aims to stabilize farmers’ contractual rights, to loosen control on land management and to speed up the land integration and ensure registration of rural collective construction land and homestead. These documents are designed to improve the efficiency of land utility, to protect farmers' land rights and to advance the land reform. Such efforts have been carried out in many places. Meanwhile, many scholars are concerned about farmers' land rights and interests, they suggest to integrate the core issues, such as, contractual right of land, right to the use of curtilage, and the right to collective distribution into legislation, economic system and social background for further study. Once the protection of farmers' land rights has been guaranteed effectively, a great number of rural women will benefit for the system.

 

Undeniably, individual identity and interests are not clearly identified due to the fact that “family” is regarded as the basic unit of the rural society. As for the rural women who have dependent statuses in a family, their land interests face more challenges and impacts during social transformation. As a consequence, the protection of women’s land interests becomes more complex and complicated which calls for more attention. This paper will discuss the protection of rural women's land rights from the perspective of human rights. Human rights are the basic rights of human being, which is in the most basic and important position in the right system of a nation. From the perspective of human rights, the survival of rural women and development of their rights protection should be focused on exploring the possible solutions, which will help to clarify the level and procedure of rural women's land rights in order to provide some useful thoughts on China's land reform.

 

 

 

Existing rules and regulations on protection of rural women's land rights are mainly embodied in the Constitution and the Law on the Protection of Women's Rights, as well as in the Rural Land Contract Law and other related laws. First, the Constitution, the Real Rights Law and the Marriage Law explicitly guarantee the principle of equality between men and women. Article 33 of the Constitution provides that all citizens of the People's Republic of China are equal before the law; article 48 provides, women in the People's Republic of China enjoy equal rights with men in all spheres of life, in political, economic, cultural, social and family life. China's Marriage Law, the Real Rights Law, has similar provisions that embody the spirit of equality between men and women. Article 39, the second paragraph of the Marriage Law provides that at the time of divorce, the rights and interests enjoyed by husband or wife in the operation of land under a contract based household shall be protected according to law. Second, the Law of the People's Republic of China on the Protection of Women's Rights and Interests (2005 Amendment), promulgated in 1992, specifically states women shall enjoy equal rights with men in land contract management, distribution of collective economic earnings, compensation for expropriation or requisition of land use, homestead, the allotment of responsibility farmland, or grain ration farmland and in the approval of housing sites in rural areas. The law also provides, in various status of marriage, women’s land rights shall not be infringed, and with remedies provided, which has specific protection provisions on women's land rights and interests for the first time. 2005 amendments to the Law on Protection of Women's Rights specifically targeted at inequality between men and women in rural women's land contract, distribution of collective economic organizations income. The Law of the People's Republic of China on Land Contract in Rural Areas has the regulations on the rights and interests of rural women’s land contract, focuses more on protection of rural women's land contract and related economic interests, which clearly sets out the property rights of women. Article 30 of the Law on the Protection of Women's Rights provides that the state shall guarantee women to enjoy the equal right to property with men. Article 32 provides that women shall enjoy equal rights with men in the contracted management of rural land, distribution of proceeds of collective economic organizations, use of land requisition and occupation compensations and use of house sites. Article 33 provides that no organization or individual may trespass upon a woman's rights and interests in the rural collective economic organization on the ground that she hasn't got married, is married, is divorced or has lost her spouse. Article 55 provides, where a woman's rights and interests in the rural collective economic organization is damaged under the excuse that she hasn't got married, is married, is divorced or has lost her spouse, or in the event that the husband lives at the domicile of his wife, the equality of the husband and the child (children) in enjoying the same rights and interests as those enjoyed by the members of the local rural collective economic organization is infringed upon, the town (township) people's government shall mediate the case in accordance with the law. The victim may also file an application with the rural land contracting arbitration institution for arbitration or lodge a lawsuit in the people's court, the people's court shall accept the case in accordance with the law. Third, in 2003, the Law of the People's Republic of China on Land Contract in Rural Areas provides clearly that women, being married, divorced or have lost spouse, enjoy the land rights. It also provides a legal remedy for rural women to address their land rights disputes. 

 

After the implementation of the Law on Land Contract in Rural Areas, farmers' land contracts became land-use contracts determined by the State and farmers. The determination and change of contractual relationship is no longer decided by village-level organizations or local governments, but is regulated by national laws and regulations. Article 6 of the Law of the People's Republic of China on Land Contract in Rural Areas provides that women shall enjoy equal rights with men in undertaking land contracts. The legitimate rights and interests of women shall be protected in the contract. Article 30 provides that during the term of contract, when a woman gets married and has no land rights in the place of her new residence, her contracted land that she got from her home shall not be deprived. Whether a divorced woman or a woman who lost her husband still lives at her residence or not, if she undertakes no contract for land, her original contracted land shall not be deprived. No organizations or individuals may deprive their rights to land contractual management, which they are entitled to, or infringe upon such right. Article 51 provides, where dispute arises over the contractual management of land, the two parties may settle the dispute through consultation and may request the village assembly or the township（town）people's government to help settle the dispute through mediation. When the parties are not willing to have the dispute settled through consultation or mediation, or consultation or mediation is not successful, they may apply to an arbitrary body in charge of rural land contracts for arbitration, or directly bring a suit in the People's Court. Article 9 also provides that the State protects the legitimate rights and interests of the owners of the collective land and the right of the contractors to land contractual management, which no organizations and individuals may infringe upon. These principles especially provide a new legal protection for female farmers to preserve their land rights. Forth, The Villagers' Committee Autonomy Law of People’s Republic of China stipulates regulations for villagers' committees and the effect of village regulations and non-government rules, as well as the scope of distribution rights of rural land interests. Article 24 of the Organic Law of the Villagers' Committee provides programs involving the interests of villagers, such as, the collective economic use, land contracting and management, turnkey solution for collective economic projects, homestead use, the use and allocation of land acquisition compensation, all shall be handled by the villagers' meetings. Article 27 provides villagers’ meeting can form and modify regulations of village autonomic rules and regulations, and report to the people's governments of townships for the record. Villagers’ autonomy charter, decisions of village regulations and the villagers' meetings or villagers' representative meetings shall not contradict to the national Constitution, laws, regulations and policies; there shall be no violation of the villagers’ personal rights, democratic and lawful property rights. Violation of the provisions of the preceding paragraph, the people's governments of townships shall order to correct. Article 36 provides where members of villagers' committees and villagers committees make the decision against villagers' legitimate rights and interests, the aggrieved villagers may apply to the Court to revoke, the person who is responsible shall bear legal liability.

 

In addition, there are relevant policies and guidance enacted for protection of rural women's land rights in specific provisions. Chinese Government formulated and promulgated the Program for the Development of Chinese Women (2001-2010), which provides "to ensure women's equal access to economic resources and services, which include the rights to capital, credit, land, technology, information and other rights, and rural women shall enjoy the equal rights with men to land contract of residence, production rights, homestead rights, land compensation, stock dividends and other rights.” In May 2001, the Central Committee of the Party and the State Council issued the Notice on the Effective Maintenance of Rural Women's Land Rights, a complete system, which for the first time explains the government's specific policies for protection of rural women's land rights. In particular, it seeks solutions for women who are married, divorced or widowed, living in their original village to obtain land contract allocation. The Notice also stipulates to ensure rural women to have a contract land, and the village, where the woman moved in through marriage shall give priority to her land contracting rights. Married woman's original village, shall not take back her contract land. For women who are divorced or widowed and still stay in the original places of residence, the village shall ensure the contract land for them. If the divorced or widowed woman does not live in the original places of residence, or her new place of residence does not grant her contract land, the village of her former residence, which has granted her a contracted land should retain her rights. The Notice contains the following four aspects, including the principle of equality between men and women, the basic protection principles, the   principle of non-discrimination against divorced women and the principle of judicial relief. The Notice also provides, regardless of marital status, rural women shall enjoy the same rights as male villagers of the same conditions, no organization or individual shall deprive their legitimate land contract rights, homestead rights to income distribution, collective economic organizations and other economic benefits. The Notice further addressed that the Court should accept and process in a timely manner to handle the cases regarding the violations of women's right to land contracting.

 

The existing legislation on rural women’s land interests structured on the basis of the following principles. Firstly, the right to equality, which is enshrined in the Constitution, the Marriage Law, the Real Right Law, and the Law of the People's Republic of China on the Protection of Women's Rights and Interests (2005 Amendment), guarantees women’s equal right regardless of their different marital status. Secondly, specific problems are addressed, such as, the impact of the changes of marrital statuses on women’s land interests and land contracting business. The Law of the People's Republic of China on Land Contract in Rural Areas set out the situations when rural women’s land interests will be damaged, and the solutions to them. Amendment to the Law on the Protection of Women's Rights also further clarified the principle of protection on women’s interests regardless of their marital status. Thirdly, the existing legislation provides a possible judicial remedy for women's land rights disputes. Land contract relations shall be directly controlled and adjusted by the national law. Fourthly, the legislation grants the right to distribution of land rights and interests to the villagers' committee, which is controlled by village regulation and non-governmental agreement. The bottom line is that the regulation and agreement shall not contradict to the constitution, laws, regulations and national policies. In general, the entire regulatory structure of land rights and interests protection emphasizes the fundamental human rights. It sets a legal bottom line with great flexibility, which leaves space for village regulation and agreement.

 

 

In reality, the insufficient protection of rural women's land rights is common. In the process of land contract and management, homestead allocation, compensation for land-use, shareholder dividends and other rights of land distribution, there are laws provided for the protection of women's equal right, but women have never, as individuals, achieved equal rights with men. Especially in situations of the change of status in the case of marriage that is often an important cause of enjoying unequal rights with men, which is such a complicated issue that often happens on the divorced, widowed or remarried widows, and the married out women. Specifically, the violations on rural women's land rights and interests occurred mainly in the following categories:

 

As to contractual operation right of land, the rural land system of China mainly characterized on rural land property of the collective, and contractual right of land of farmers, which household contract management is the core of rural land system. Under the law of Land Contract in Rural Areas, rural women shall enjoy equal rights with men in land-contracting rights allocation, such rights include that women, as members of specific economic organizations, enjoy the right of contracted land to possess, use, operate and the right to gains based on the contract. Nevertheless, there is space left to rural regulations to handle how to achieve equal rights under the law, to which different places have different practices. Although there are policies which states that "no extra land will be allocated to the increased population and no land will be deprived when the population decreased" and "land contract remain unchanged".³ In some places, when some rural women left the village and worked in the cities after marriage, their land were taken back and subcontracted by the village, and it's hard to protect the right when they return home. Some village rules are made via consultation from the villagers, although contrary to national law and policy, it has been able to apply because of the general acceptance by villagers.⁴

 

With respect to the distribution of compensation for land expropriation, as the rapid progress of transportation infrastructure and urbanization in recent years, some rural collective-owned land expropriated by state, from which rural collective organizations receive huge compensation. Compensation for land expropriation is in accordance with the original purposes of economic compensation for expropriated land, national authorities apply the principle of equality between men and women in the allocation of land compensation, however, in reality, there still exists the village rules that give no or less compensation to women married out, even denied their legal right via village meetings. Some compensation allocation based on the family unit of the village, woman married out or divorced women were often unable to obtain their due compensation. In addition, some rural collective organizations take different measures to the people, like men settled in the domicile of his wife and their children, rural women marry out without transfer her registered residence and her children’s, rural remarried women settled with her children in new residence, they have less or even no distribution of land in the village.⁵

 

In terms of allocation of homestead, especially in the rural-urban areas, farmer’s homestead contains huge economic benefit. Different from the ownership of homestead, right to the use of curtilage is a welfare to the members of rural collective economic organization, closely related to their specific identity, generally used by free with no time limit. There have strict restrictions in laws and regulations on getting homestead, such as members of the collective economic organizations can only apply for one piece of homestead, which means "one household, one housing". When the farmer has exercised a homestead application and got it, after transferring the housing, even if there is no living room, he/she could not apply for a new homestead, but get the homestead in the form of transfer or lease. In practice, some rural areas, in the allocation of homestead, apply different policies for women with different marital status. Furthermore, under the policy of "one household, one housing", if a divorced women left home, her right to the use of homestead cannot be fully protected.⁶ At the same time, with social development and acceleration of urbanization, the number of rural land expropriation increases, land function becomes diversified. As to the other rights to earnings derived from land rights and interests, women’s interests are not well protected. For instance, in some land reform pilots, which conduct cooperation of land shares, put land interests as collective assets unit to distribute to farmers, but in some of these areas women married out have less interests than the native villagers, some of them even have to buy the equity.

 

Thus, in rural area, national laws clearly provide the equal principle between men and women, land interests distribution principles, and principle of handling interest-violations and judicial relief. But some autonomy village rules failed to fully reflect the expectation of national legislation. Women’s land interests, as independent individual interests, have not yet got enough recognition and respect.

 

 

In China, the protection of the land rights of rural women appears to be in an awkward situation due to the rural traditional male-orientated concepts and the absence of legislation. From the perspective of human rights, the protection of rural women's land rights in China has a certain inevitability; to some extent, it is reflected that it is necessary to raise the awareness of treating women as independent individuals. The initial orientation of land system in legislation has a stage characteristic.

 

 

Looking back the evolution of land system in China, the awareness of regarding women as independent individuals is growing, which laid the foundation for the realization of the right to equality.

 

Before the founding of new China, the CPC attached great importance to the emancipation of women and protection of rural women's land rights. The Soviet Republic of China Land Law, published in 1931, was the law that had the largest and longest effect and was most widely implemented. Article 1 of the Act provides that the confiscated land, shall be assigned to the poor and middle peasants by the Soviets. Farmworkers, coolies, the working poor, also have the right to allocation of land, regardless of gender. Article 6 of the Outline of China Land Law, published in 1947, provides that apart from the specified land, the rest of the land shall be divided equally to every man, woman, and child, which applies the principle of equality both on quantity and quality. Thus, all the people equally accessed to the land in the village, the vast rural women got their land as men, therefore enjoyed equal property rights. After the founding of new China, especially since the reform and opening-up policy, the government further strengthened the legal protection on rural women's land rights, and gradually formed a complete set of legal system of protection on rural women's land rights.

 

From the view of human rights, no specific content and form of any basic human rights can be separated from the historical and cultural traditions of a country and its national conditions. Looking back the evolution of land system in China, awareness of equal distribution on land rights has been increasing. That woman is treated as individual is weakening the patriarchal concept of local society, which contributes to the realization of the right of equality in reality.

 

 

From the initial orientation of current land legislation, status of women's rights shall fit the characteristics of our local society, and minimizing the scope of intervention of the State at the same time.

 

First, it is essential to fit women's rights to the characteristics of our local society. Since the reform and opening up policy, historic changes have taken place in rural areas in China, which has made remarkable achievements, and one of the most important reasons of the achievements contributed to the two-tier management system that was a combination of centralization and decentralization contract responsibility system. In this system, the subject of economic activity is beholden to household farmers, who by virtue of their means of production exercise independently their business activities; its way of distribution is also based on the family unit, with the principle of independent management and with responsibility for its own profits and losses. In rural China, family established on the blood and marriage relationship, which is most basic social unit of rural society, and the family contracting system, has added unified interests and value for the basic social unit, which makes the "family" bear two functions of social and land system basic unit. Different from other rural social organizations, this unit creates stronger link and more lasting stability of families. It can be said that the success of household contract responsibility system had direct relationship with its rural characteristics. Since the 80's of last century, the core of China's land legislation is on the maintenance of stability of land contract relationship and perfection of the land contract system.

 

With respect to the actual operation of the system, state intervention should be minimized as far as possible. National legislation makes basic principles, while a large number of interests in land allocation matters decided by the village rules and judgment. Village rules and judgment on the land matters has its legitimacy. According to the Organic Law of the Villagers' Committees, villagers formulate village regulations to exercise self-discipline. Village rules and regulations are a general definition that refers to meet the villagers' autonomy demands, agreed by villagers from the same village to observe self-constraint mutually. Article 10 of the Organic Law of the Villagers ' Committee provides that the villagers' committee and its members should abide by the national Constitution, laws, regulations and national policies, and compliance with and implement regulations of villagers' autonomy. Its content is based on the formation of local production of long term habits and customs with its regional feature, which can be classified as a folk law that has a wider scope of use and stronger force in China.⁷ On the relationship with national law, the village rules and regulations should be enacted within the scope of the national laws, and to develop rich local characteristics of the special provisions under the state law. Village rules and regulations fill a gap in state law, which has also become the basis of national law. Some scholars point out that, as a folk law, village rule and regulations reflect the native resources of history and modernity of the state, which brought a deep impact on the problem of rural land on dimensions of history and modernity. On the one hand, rural rules and regulations on land established gradually in the process of rural land use, which reflects the traditional habit of local people for land use. On the other hand, this tradition further influenced contemporary norms or practices on land-use. Su Li believes that local resources, characterized by historical tradition on the one hand, which expressed as millions of Chinese people's practical implications of their actions in life; or from behavioral point, it is a reflect of their behavior pattern; but on the other hand, it is the new habits and traditions formed in the process of building the market economy.⁸ In this sense, it is reasonable that the state reduces interventions in the rural activities and gives farmers the right to decide their land rights and interests according to village rules and regulations.

 

Undeniably, there are some vague points and omissions in building of the land legislation system.⁹ For example, the subject system of rural collective land ownership is imperfect, and the subject interests of collective ownership of land is deficient; collective ownership of land, in fact, is mainly reflected in land contracting, farmers with contracted land in fact have shared the collective land ownership that should have owned by the subject, while the other collective members without contracted land therefore lost their rights and interests of land ownership that they should have enjoyed as the collective members. When a woman got married, her original membership changed, which means she will loss her identity in the original community, so the contractual right of land she enjoyed have also changed. After the changes of contractual right of land, it is also difficult to guarantee the rights and interests of other members under the collective ownership system. Thus, the women, whether married or divorced, once changed their membership, their rights and interests in the land are hard to be fully protected, but those who have not remarried and remain widows, due to the membership remain unchanged, the conservation status of the interest in the land was relatively protected. Such flaws, as in system design, are the initial design problems, others are the necessary adjustments with the development of society. The current land reform is to adjust these institutional gaps to exclude the subsequent reform problems.

 

 

The protection on rural women's land rights gains more attention than before. In rural China, there has been patriarchal concept that made marriage uneasy to break. The ancient Chinese system, "seven outs" and the "three nos", set restrictions for a traditional family. "Seven outs" and "three nos" is an ancient legal system to guarantee women's family affiliation. "Seven outs" is the divorce system, also called the "seven gos", that is, in seven cases, a man has the right to divorce his wife(s), the "seven outs" includes: incompliance with parents, agenesia, obscenity, jealousy, nasty disease, gossip and theft. The "three nos" is a system that prohibits men from divorce, namely "the woman has no place to go after divorce(parents died); in the three-year mourning period; men become rich after married. ” From these provisions it can be seen that marriage, in ancient times, was not only a women's economic reliance, but they had to bear, in a greater sense, the universal moral evaluation. Divorce was not easy, which was usually a major event in the village life. But in now rural China, the situation has changed, women's equal rights are protected by Marriage Law, moral evaluation function of marriage is reducing, the traditional concept that keeps up marital relations has been quietly changing. Marriage, even though to some extent, is a kind of economic community, but is no longer the unbreakable moral chains. In this case, the economic interests of women in marriage and the survival, development, equality and other basic rights in the local community, are directly associated with the interests on land. Land rights become the most basic and important rights of survival and development of rural women. So, the protection of the land rights of rural women in China directly reflects the situation in the protection of human rights of rural women.

 

Judging from the conservation status of women's land rights and interests, at the beginning of the legislation, China established the notions of human rights protection, to protect farmers' equal right and reduce state intervention on legislation. With the development of society, national legislations have noticed that rural women, as the social weak group, should be protected. The state established some laws related to the protection of the rights and interests of women, such as the Law of the People's Republic of China on the Protection of Rights and Interests of Women, Law of the People's Republic of China on Land Contract in Rural Areas, and Organic Law of the Villagers' Committees of the People’s Republic of China, which all strengthened the legislative intervention. Predictably, in addition to adhering to the Constitution that all persons shall be equal, we should avoid and remedy the situation that the social weak who may lose or have lost their freedom and equality, and actively participate in social and economic activities with the help of country, adopting certain methods to achieve their rights, which is the actual meaning of the agrarian reform. In a word, protection of rural women's land rights in practice is a reflection of stage characteristics of China's human rights development.

 

 

From the perspective of human rights, it will be helpful to clarify clues and problems in the complex land reform to combine with the goal of the protection of human rights and explore the system design related to the fundamental rights protection, as well make progress in China's protection of rural women's land rights step by step. It can be considered from the gender perspective on land legislation; to strengthen the institutional design of equal protection and establish a bottom line to protect the most basic human rights of women, compress necessarily the use of village rules and regulation.

 

 

It is the actual meaning of the protection of human rights to face the weak position of women in rural society and achieve their equal rights via equal protection at the present stage. Equal right is a fundamental right under the Constitution of China, it is a prerequisite and general condition for subject of right to participate in social life. The equal rights of citizens have the following meanings: all citizens enjoy the equal rights under the Constitution and laws; all citizens fulfill equally the obligations under the Constitution and laws; state organs, in the appliance of law, put protection or punishment on citizens equally, which should not vary from person to person; no organization or individual is privileged beyond the Constitution or the law. The "equality" in Constitution is a legal principle and ideal goal, while The Marriage Law and The Real Right Law are the specific interpretation of this principle, but on how to achieve equality, how to define the "equal protection", and what measures to take, there is still absence in existing legislation. If there is only the right to equality, equal protection would be insufficient, which true equality cannot  achieve. Of course, this inequality of rights or the truth of unable to realize equality temporarily has its historic roots and the influence of the political and economic system. But in the principles of human rights and equal rights, such differences should be minimized. Therefore, special means of administrative assistance and social security may be considered, such as increasing gender perspectives in legislation, even taking consideration on forming a special legislative project on the study of the protection of rural women's land rights, implementing assistance to rural women, to make the social weak enjoy equal rights.

 

 

2016 No.1 document of Central government explicitly requests that we should deepen the reform of rural collective property right system. For example, quantifying the collective assets such as land to the members of the collective economic organizations to improve the mechanism for collective unified operation of non-operating assets is recommended. Meanwhile, it also requires to stabilize relationship among rural land contracts, implement collective ownership, secure farmers' right to contract, loosen the of land management, improve the "three separate rights" approach, and clarify the specific provisions of permanency on the rural land contract relations. This refers to the reforming of the collective property right system that separate farmers' contract rights from the right to management that are already covered in the existing land reform. With this reform to move forward, the institutional design of the land reform, separate the existing membership rights from property rights of collective organization, is, after all, a realistic consideration of protection on the women's land rights and interests.¹⁰

 

To be specific, the farmers enjoy three rights in the collective organization, one is the ownership of land that based on the collective membership, the rights and interests shared by all members of the collective, it is an indivisible welfare for all member of a collective, but it can be the basis of the joint-stock system; the second is the right of land contract that based on the collective membership. This right separated from collective contractual right of land that linked with the membership of a collective organization, which does not have a nature of property, thus cannot be transferred; the third is the contractual right of land, also called usufructuary right. It has the nature of property that can be transferred. It is not necessarily linked to the collective membership, now being called a collective right to contracted management. After the separation of contractual operation right of land and land contract right, the collective ownership of land has not changed, collective members still have the right to enjoy their individual rights and interests, which come from the indivisible collective common interests. Collective ownership of land can be carried out by way of shareholding system, collective members can be the shareholder with their contractual right of land. Women in rural areas enjoy the right to collective membership in specific situations, they may take participation in the profit based on collective ownership and collective contractual allowance. Women that move out of the collective organization they were belonged to because of marriage or divorce, even if they lost the membership of this collective, thereby cease to be enjoyed the original right of land contract and collective land ownership rights that associated with a collective membership, but their right to land contractual management can still continue to perform. It can be redeemed by the collective economic organizations if the woman is reluctant to the reservation. Women that move into new residence because of marriage or divorce, they may not be assigned contracted land on the regulation that contracted land can not be adjusted, but it does not affect their application to join the collective organization, which they can enjoy the right and interests of collective ownership based on the new memberships, they can also buy a contractual right of land in the new residence with the payment they got in original residence. So, whatever changes in marital relations, their land rights and interests are always able to get protected. It is a realistic thinking within the existing legal framework.

 

 

Under the current land laws, the village rules and regulations should not be inconsistent with national constitution, laws and regulations. But in practice, the power of village rules and regulations tends to suppress the national laws.¹¹ In traditional rural areas, it is generally accepted that women are dependent in family life, the allocation of land interests is relatively simple under legal requirements if the marital relationship is normal, but once the change of marital relationship leads to the change of collective membership, the operation space of village rules and regulations will increase. In case of member identity was weakened, some village rules and regulations will make the collective democratic decision according to the autonomy system of grass-root level, to deprive married women, divorced women and other vulnerable groups of their land rights. With low legal awareness, the collective organization and the parties themselves often do not clearly recognize the violation of the statutory rights, even less able to get judicial remedies to protect their rights and interests. Although the Organic Law of the Villagers' Committee provides that the town government has oversight authority, the actual effect is barely satisfactory under the supervision of the grass-roots organizations with similarly less legal awareness. In this case, national legislation on construction of village regulations, supervision system and error correction should be further strengthened, and makes it more functions to help vulnerable groups in society.

 

Specifically, some provisions can be further refined in the relevant administrative regulations, specify principles and practices on women's land rights and interests, thus the grass-roots administrative organization could properly and accurately deliver, execute and condense the content that needs to be explained by them, so that to ensure the implementation of relevant laws and policies. For instance, specific provisions should be given on when the village developed land compensation program, it should explicit the participation proportion of women and consult views of masses groups, and provide members qualification of collective organization with specific standard and so on; another is to establish review system, error correction, and accountability mechanism on village rules, such as explicit specific responsibility of village rules or villagers conference resolution, to which in practice women’s land interests is infringed by villagers autonomy articles.

 

In sum, protection of rural women's land rights is a complex and difficult task that involves kinds of benefit. Repeated research and experimental practice are needed to draw useful experience. From the perspective of human rights, the thinking on protection of rural women's land rights, may be able to set a starting point for protection, so that to provide some inspiration for the practice of protection on rural women’s land rights in China.

 

(Translated by Wang Liping)

 

* Hong Qiao (洪荞), PH.D. in law, School of Law, Renmin University of China.

1. National Statistics Report : "New Normal and New Strategic Development--' Twelve-Five 'Had Remarkable Achievements in China's Economic and Social Development".

2. Lin Qing, Research on the Loss and Protection of Farmers ' Land Right—Base on China's Economic Development, China Social Sciences Publishing House, 2013, at 187.

3. Ji Xianqing, “Evolution of the Land Reform in 30 Years—Analysis on National Policy and Actual Implementation,” Agricultural Economy, No. 5 (2013).

4. Yang Yuling, “Empirical Study of the Regional Protection of Rural Women's Land Rights—Take Ningde City, Fujian Province as An Example,” Journal of Qingdao Agricultural University, No. 2 (2015).

5. Chen Xiaojun, “The Legal Introspection and System Reconstruction of Rural Collective Land Expropriation,” China Legal Science, No.1 (2012).

6. Song Caifa, “The Legal Discussion on the Farmers ' Homestead Ownership and the Right to Use,” Journal of Central-South University for Nationalities, No. 4 (2012).

7. Liang Zhiping, The Customary Law of the Qing Dynasty: The Society and State, CUPL Press, 1996, at 35-40.

8. Su LI, The Rule of Law and Its Local Resources, CUPL University Press, 2004, at 67.

9. Gao Fei, “Study on the Dilemma and Countermeasures for the Protection of Rural Women's Land Rights,” China Land Science, No. 10 (2009).

10. Cai Lidong, “Legal Construction on the Separation of Contracting Right and Right of Management,” Study of Law, No. 3 (2015).

11. Zhang Xiaohan, “Study on the Loss of Rural Women's Land Rights under the Background of Villager Autonomy,” China Land Science, No. 6 (2012).