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承包土地合同违约责任误区

农村 承包土地 合同是指农村集体经济组织的成员或农村集体经济组织以外的人与其集体经济组织之间签订的承

农村承包土地合同是指农村集体经济组织的成员或农村集体经济组织以外的人与其集体经济组织之间签订的承包农村土地并交付一定收益的协议。农村承包土地合同的主要内容包括：发包方、承包方的名称，发包方负责人和承包方代表的姓名、住所；承包土地的名称、坐落、面积、质量等级；承包期限和起止日期；承包土地的用途；发包方和承包方的权利和义务；违约责任等。农村土地承包合同包括书面合同、口头合同、任务下达书，以及其他能够证明承包经营关系的事实和文件。

　　一、发包方的主要违约形式及责任

　　1，干涉承包方依法享有的生产经营自主权　　承包方依照《农村土地承包法》第16条第1项的规定，依法享有承包地使用、收益的权利，有权自主组织生产经营和处置产品，这就是承包方的生产经营自主权的基本内容。目前，在一些地方，不尊重农民生产经营自主权的问题还比较突出。有的发包方为了完成上级布置的任务，建样板田、示范基地等，不顾承包农民的意愿，强迫他们种植某种作物；有的发包方为了发展农业产业化、实行规模经营等，强迫承包方统一耕种某种作物；有的发包方假借统一管理等名目，强迫承包方购买指定或代销的种子等农业生产资料。承包方如不同意，有的发包方即采取不正当手段强制推行，甚至砍毁承包方已经耕种的作物。当承包方按照发包方的强制要求耕种，产品出现卖难、减产等问题时，发包方又不予解决或者无力解决，给承包方造成损失。农民意见很大，有的还造成了社会问题。因此，本文特别强调，发包方要尊重承包方的生产经营自主权，在推行农业产业化、规模经营的过程中，要充分尊重农民的意愿，让农民真正看到实惠，决不能非法干涉承包方依法享有的生产经营自主权。对上述违约行为，发包方应当承担停止侵害、恢复原状、排除妨害、赔偿损失的民事责任。

　　2，发包方非法变更、解除合同　　承包合同依法成立后即具有法律效力，双方当事人必须认真履行，任何一方均不得擅自变更、解除合同。根据《农村土地承包法》第26条和第27条的规定，家庭承包的，在承包期内，非发生法律规定的事由，并经过法定程序，发包方不得收回和调整承包地，这是该法赋予农民长期而有保障的土地使用权的核心内容。同时发包方不得假借少数服从多数强迫承包方放弃或者变更土地承包经营权。当前，有的乡村干部不注意尊重农民的生产经营自主权，习惯用计划经济的思想和行政干预的手段指导农业生产，强制收回承包地。农民如不接受，发包方便通过不正当手段操纵村民会议或者村民代表会议，达到少数服从多数产生有关决议，强迫农民违背自己的真实意愿，放弃或者变更其土地承包经营权。此外，发包方不得以划分“口粮田”和“责任田”等为由收回承包地搞招标承包，也不得将承包地收回抵顶欠款。有上述行为之一的，根据《农村土地承包法》第54条的规定，发包方应承担停止侵害、返还原物、恢复原状、排除妨害、消除危险、赔偿损失等民事责任。

　　3，强迫或者阻碍承包方进行土地承包经营权流转，剥夺、侵害妇女依法享有的土地承包经营权　　土地承包经营权的流转，是在坚持以家庭承包经营为基础的农村基本经营制度的条件下，以市场的方式配置农用地资源，促进农村富余劳动力转移，提高农业生产效率的一个好办法。但是，土地承包经营权的流转必须是在尊重农民的意愿的基础上，由承包方自愿进行。《农村土地承包法》第10条规定：“国家保护承包方依法、自愿、有偿地进行土地承包经营权流转”。第34条规定：“土地承包经营权流转的主体是承包方。承包方有权依法自主决定土地承包经营权是否流转和流转的方式”。承包方在进行土地承包经营权的流转时，除以转让方式流转须经发包方同意外，其他流转的方式，发包方一律无权干涉。但是，目前在一些地方的农业结构调整和产业化发展过程中，发包方以结构调整和发展农业产业化为借口，以各种手段强迫承包方将承包地进行流转，集中土地搞所谓“规模经营”和“产业化”。这些行为都是严重地侵害了承包方的土地承包经营权的违法行为。　　男女平等，是宪法的原则。《农村土地承包法》第6条规定：“农村土地承包，妇女与男子享有平等的权利。”第30条又对妇女结婚、离婚、丧偶时处理承包地问题的原则作了规定。但是，实践中，剥夺、侵害妇女土地承包经营权的行为也经常发生，其表现形式很多，有的是妇女出嫁时，不论何种情况一律收回其承包地，有的是在承包时不能做到男女平等，有的是非法剥夺妇女的继承权等。　　对上述侵权行为，根据《农村土地承包法》第54条的规定，发包方应承担停止侵害、恢复原状、排除妨害、赔偿损失等民事责任。

　　4，发包方未依合同约定交付承包标的　　农村土地承包合同生效后，发包方应依合同约定的时间或条件将标的物交付给承包方经营使用，否则，即构成违约。如发包方逾期交付、拒绝交付等行为给承包方造成损失的，应承担违约赔偿责任。最高人民法院《关于审理农业承包合同纠纷案件若干问题的规定（试行）》（以下简称《若干规定》）第26条规定：“承包合同转包后，因发包方的原因，致使转包合同不能履行，给转包后的承包方造成损失的，转包后的承包方起诉承包方时，人民法院可以通知发包方作为第三人参加诉讼，并根据其过错，确定其应承担的相应责任”。

　　二、承包方的主要违约形式及责任

　　1，承包方改变土地的农业用途，用于非农建设　　承包方依法享有承包地使用、收益和土地承包经营权流转的权利，根据《农村土地承包法》第17条的规定，承包方又有维持土地的农业用途、不得用于非农建设的义务。土地管理法对于农业用地转为建设用地规定了严格的转用审批程序和征地、用地批准程序。将农业用地转为建设用地，必须依照土地管理法的规定，经过有关人民政府或有关行政主管部门批准。承包方未履行土地管理法规定的批准手续，或者采取欺骗手段骗取批准，将承包地用于非农业建设的，其行为应当依照土地管理法的规定，由县级以上地方人民政府的土地行政主管部门给予处罚。此外，根据《农村土地承包法》第56条的规定，当事人一方不履行合同义务或履行义务不符合约定的，应当按照《中华人民共和国合同法》的规定承担违约责任。如承包方在承包经营活动中出现上述行为，即是严重的不履行合同义务或履行义务不符合约定的行为，就应承担相应的违约责任。

Misunderstandings of Liability for Breach of Contract in Land Contracting Contracts

Rural land contract refers to the contract signed between members of rural collective economic organizations or individuals outside of rural collective economic organizations and their collective economic organizations

Rural land contract refers to an agreement signed between members of rural collective economic organizations or individuals outside of rural collective economic organizations and their collective economic organizations to contract rural land and deliver certain benefits. The main content of rural land contract includes: the names of the contracting party and the contracting party, the names and addresses of the contracting party's responsible person and the contracting party's representative; The name, location, area, and quality level of the contracted land; Contract period and start and end dates; The purpose of contracting land; The rights and obligations of the contracting party and the contracting party; Liability for breach of contract, etc. Rural land contract includes written contract, oral contract, task assignment letter, as well as other facts and documents that can prove the contract operation relationship.

1、 The main forms of breach and responsibilities of the contracting party

1. Interference with the production and operation autonomy enjoyed by the contracting party in accordance with the provisions of Article 16 (1) of the Rural Land Contracting Law. The contracting party has the right to use and benefit from the contracted land in accordance with the law, and has the right to independently organize production, operation, and disposal of products. This is the basic content of the production and operation autonomy of the contracting party. At present, in some places, the issue of not respecting the autonomy of farmers in production and operation is still quite prominent. Some contracting parties, in order to complete the tasks assigned by their superiors, build model fields, demonstration bases, etc., ignoring the wishes of contracted farmers and forcing them to plant certain crops; Some contracting parties force the contracting parties to cultivate a certain crop uniformly in order to develop agricultural industrialization and implement scale management; Some contracting parties use the pretext of unified management to force contractors to purchase designated or consignment seeds and other agricultural production materials. If the contractor does not agree, some contracting parties will take unfair measures to force the implementation, and even cut down the crops already cultivated by the contractor. When the contractor cultivates according to the mandatory requirements of the contracting party, and there are problems such as difficulty in selling or reduced production of the products, the contracting party fails to solve or is unable to solve them, causing losses to the contracting party. Farmers have strong opinions, some of which have also caused social problems. Therefore, this article emphasizes that the contracting party should respect the production and operation autonomy of the contracting party. In the process of promoting agricultural industrialization and scale operation, it is necessary to fully respect the wishes of farmers, so that farmers can truly see the benefits, and must not illegally interfere with the production and operation autonomy enjoyed by the contracting party in accordance with the law. For the above-mentioned breach of contract, the contracting party shall bear civil liability for stopping the infringement, restoring the original state, eliminating obstacles, and compensating for losses.

2. The illegal modification or termination of the contract by the contracting party shall have legal effect upon the establishment of the contract in accordance with the law. Both parties must conscientiously fulfill their obligations, and neither party shall unilaterally modify or terminate the contract. According to Article 26 and Article 27 of the Rural Land Contracting Law, for household contracted land, during the contracting period, the contracting party shall not reclaim or adjust the contracted land unless there are legal reasons and legal procedures. This is the core content of the law that grants farmers long-term and guaranteed land use rights. At the same time, the contracting party shall not force the contracting party to abandon or change the land contracting and management rights under the pretext of a minority obeying the majority. Currently, some rural cadres do not pay attention to respecting the autonomy of farmers in production and operation, and are accustomed to using the ideas of planned economy and administrative intervention to guide agricultural production and forcibly reclaim contracted land. If farmers do not accept it, the contracting party may manipulate the village meeting or village representative meeting through improper means, resulting in a minority obeying the majority and producing relevant resolutions, forcing farmers to abandon or change their land contract management rights against their true wishes. In addition, the contracting party shall not take back the contracted land for bidding and contracting on the grounds of dividing it into "grain ration fields" and "responsibility fields", nor shall it take back the contracted land to offset the outstanding debts. According to Article 54 of the Rural Land Contracting Law, if any of the above behaviors occur, the contracting party shall bear civil liabilities such as cessation of infringement, return of the original property, restoration of the original state, elimination of obstacles, elimination of danger, and compensation for losses.

3. Forcing or obstructing contractors to transfer land contracting and management rights, depriving or infringing on women's legally entitled land contracting and management rights, and transferring land contracting and management rights, is a good way to allocate agricultural land resources in a market-oriented manner, promote the transfer of surplus rural labor, and improve agricultural production efficiency, while adhering to the basic rural management system based on household contracting and management. However, the transfer of land contract management rights must be carried out voluntarily by the contracting party on the basis of respecting the wishes of farmers. Article 10 of the Rural Land Contracting Law stipulates: "The state protects the contracting parties from lawfully, voluntarily, and competitively transferring their land contracting and management rights.". Article 34 stipulates: "The subject of the transfer of land contract management rights is the contractor. The contractor has the right to independently decide whether to transfer the land contract management rights and the method of transfer in accordance with the law.". When the contractor transfers the land contract management right, the transfer method must be approved by the contracting party, and the contracting party has no right to interfere with other transfer methods. However, in the process of agricultural structural adjustment and industrialization development in some places, the contracting party uses structural adjustment and the development of agricultural industrialization as an excuse, and uses various means to force the contracting party to transfer the contracted land, concentrating the land for so-called "scale management" and "industrialization". These behaviors are serious violations of the land contracting and management rights of the contracting party. Gender equality is a principle of the Constitution. Article 6 of the Rural Land Contracting Law stipulates that "women and men have equal rights in rural land contracting." Article 30 also stipulates the principles for handling land contracting issues when women get married, divorced, or widowed. However, in practice, the act of depriving or infringing on women's land contracting and management rights often occurs, with many manifestations. Some women take back their contracted land when they get married, regardless of the situation, some cannot achieve gender equality when contracting, and some illegally deprive women of their inheritance rights. According to Article 54 of the Rural Land Contracting Law, the contracting party shall bear civil liability for the above-mentioned infringement, including cessation of infringement, restoration of the original state, elimination of obstacles, and compensation for losses.

4. If the contracting party fails to deliver the contracted rural land as agreed in the contract, the contracting party shall deliver the subject matter to the contracting party for operation and use according to the time or conditions stipulated in the contract. Otherwise, it shall constitute a breach of contract. If the contractor suffers losses due to delayed or refused delivery by the contracting party, they shall be liable for breach of contract compensation. Article 26 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Agricultural Contract Disputes (Trial) (hereinafter referred to as the "Provisions") stipulates: "If, due to the fault of the contracting party, the subcontracting contract cannot be performed and causes losses to the contracting party after subcontracting, the contracting party after subcontracting may sue the contracting party. The people's court may notify the contracting party to participate in the litigation as a third party and determine the corresponding responsibilities they should bear based on their fault.".

2、 The main forms and responsibilities of the contractor's breach of contract

1. The contractor shall change the agricultural use of the land for non-agricultural construction. The contractor shall have the right to use, benefit from, and transfer the contracted land management rights in accordance with the law. According to Article 17 of the Rural Land Contracting Law, the contractor shall also have the obligation to maintain the agricultural use of the land and not use it for non-agricultural construction. The Land Management Law stipulates strict approval procedures for the conversion of agricultural land to construction land, as well as approval procedures for land acquisition and use. The conversion of agricultural land into construction land must be approved by the relevant people's government or administrative department in accordance with the provisions of the Land Management Law. If the contractor fails to fulfill the approval procedures stipulated in the Land Management Law, or uses deceptive means to obtain approval and uses the contracted land for non-agricultural construction, their behavior shall be punished by the land administrative department of the local people's government at or above the county level in accordance with the provisions of the Land Management Law. In addition, according to Article 56 of the Rural Land Contracting Law, if one party fails to fulfill its contractual obligations or fails to fulfill its obligations in accordance with the agreement, it shall bear the liability for breach of contract in accordance with the provisions of the Contract Law of the People's Republic of China. If the contractor engages in the above-mentioned behaviors in the contracted business activities, which is a serious failure to fulfill contractual obligations or failure to fulfill obligations in accordance with the agreement, they shall bear corresponding breach of contract responsibilities.