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The “Separation of Three Rights” of the Use Right in Self-Retained Hills: Jurisprudential Logic and the Path to Statutory Recognition as a Real Right

Tianpeng Pu¹, Pengcheng Ding², Rui Zhang³

Advance in Law / 2026,8(3): 145-156 / 2026-08-18 8 5

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• Information:

  1. Yunnan Provincial Real Estate Registration Center, Kunming, China
  2. Yunnan Provincial Archives of Surveying and Mapping Materials (Yunnan Provincial Fundamental Geographic Information Center),  Kunming, China
  3. Kunming University of Science and Technology, Kunming, China

• Abstract: For over six decades, the use right in a self-retained hill has remained a policy-based right rather than a statutory real right. The 2023 Plan on Further Deepening the Reform of the Collective Forest Tenure System calls for exploring the separation of three rights in a self-retained hill, bringing the reform into a substantive phase. However, the separation of the management right faces a jurisprudential obstacle: the legal characterization of the parent right remains poorly defined. This article argues that the use right in self-retained hill, though closely approximating a usufruct in entitlement structure, occupies an ambiguous status as a “quasireal right”, lacking both a formal constitutive act and sufficiently complete statutory norms. Its separation of three rights therefore cannot simply replicate the contracted rural land path of division within an established real right; it must instead proceed in two stages: conversion into a real right, then renewed separation. Confronting three theoretical dilemmas—the principle of numerus clausus for real rights, the entanglement of status and property, and the conflict between public and private law—the right should be gradually recognized as a real right through reasoning by analogy, pilot local legislation, and central statutory normative confirmation. A tiered system of management rights should then be constructed by reference to Article 41 of the Law of the People’s Republic of China on Rural Land Contracting.
• DOI: 10.35534/al.0803011 (registering DOI)
• Cite: Pu, T. P., Ding, P. C., & Zhang, R. (2026). The “Separation of Three Rights” of the Use Right in Self-Retained Hills: Jurisprudential Logic and the Path to Statutory Recognition as a Real Right. Advance in Law,8(3), 145-156.