林权流转的法律风险防范

Study on Risk Prevention of Forest Rights Transaction

以一起林权流转纠纷为案例,对林权长期流转和活立木流转中的法律关系进行分析。结果表明:林权流转作为林地租赁合同和林木买卖合同的联立,属于一种新的合同形式,无法单纯适用租赁和买卖合同的规则;活立木流转作为一种短期流转方式,流转客体为林木所有权;流转到期后受采伐指标限制而无法采伐的情况,应当允许适当延期并合理确定林木归属。最后,根据林权流转中的法律风险分析,出让方规避风险的措施建议:第一,双方应合理确定流转费支付方式;第二,出让方应约定合同终止条件并及时行使权利;第三,出让方应谨慎办理林权转移登记。受让方规避风险的措施建议为:第一,受让方应在流转之前查清权利归属;第二,双方应提前约定政策风险负担。

⑴Background——Since the Collective Forest Tenure Reform(CFTR)in 2003,forest rights transaction had played an important role in promoting the large-scale management of forestry and improving the output efficiency of forest land,but the risk of transaction is also gradually highlighted.The risk performance of forest rights transaction is that one party often breaks the contract,and transfer contracts cannot be performed normally.⑵Methods——The research method is to use the case analysis method.Through the analysis of a typical case of forest rights transaction,combing the changes of legal relationship among both parties,and investigating the causes of the parties'transfer risk from the content of the contract and the process of contract performance.⑶Case Study——In this case,there are two forest rights circulation relationships and mandatory enforcement of debt repayment.The forest rights circulation refers to the transferor SY Village Committee of the forest rights transfer and then re-transferee to Mr.Wang.The mandatory implementation of debt repayment refers to the forest rights dispute between the creditor of SM Company.By analyzing the relationship between SY Village Committee and SM Company's forest rights circulation,it can be seen that:Firstly,the forest right transfer contract belongs to the joint establishment of the forest land lease contract and the forest tree sale contract,and the forest right change adopts the registration antagonism.Secondly,the forest right transfer contract with termination conditions shall become invalid when the conditions are fulfilled,and the forest right shall turn to the assigning party after the termination of the forest right transfer contract.By analyzing the contractual relationship between SM Company and Mr.Wang,it can be seen that the nature of the circulation of standing timber is a forest timber sales contract,and the forest belongs to the transferee after the expiration of the circulation period of the standing timber.⑷Conclusions and Discussions——As a combination of forest land lease contract and living trees deals contract,forest right transfer belongs to a new form of contract,which cannot simply apply the rules of lease and sales contract.The effective time of the change of forest rights should be the effective time of the contract;the contract with termination conditions should be invalid when the conditions are fulfilled.The risks that the transferor should guard against mainly focus on the default and ownership transfer.Suggestions to the transferors are:both parties should reasonably determine the payment mode of circulation fee,and if the transferees want to transfer the forest right again or use the transferred forest right for financing guarantee,it needs to obtain the consent of the transferor.The circulation contract should be attached with termination conditions,stipulating that if the rent is not paid continuously for a certain period of time,the contract shall be terminated when the termination condition occurs.The transferors should handle the registration of forest right transfer carefully,especially avoid the situation that the transferees only pay part of the transfer fee,and let them obtain the forest ownership certificate.The legal risk of the transferees mainly comes from the value of the forest can not be turn into real cash,resulting in the payment of consideration but unable to obtain the equivalent benefits.Suggestions to transferees are:before signing the contract,the transferees shall check the ownership of the transferred forest right,so as to avoid the realization of the transferred forest right due to the ownership dispute or ownership defect of the forest land and trees.Both parties shall agree on obligation to apply for logging license and the risk allocation scheme,and agree on the extension scheme and ownership of forest rights that cannot be felled at the expiration date.