家庭农场金融支持法律问题研究
发布时间：2018-08-22 16:48
【摘要】：自2013年起,家庭农场连续多年在中央一号文件中出现,因其具有规模化、集约化、商品化特征,成为我国现代农业发展的必然趋势。2014年被第66届联合国大会确定为“国际家庭农业年”,旨在重新定位家庭农业在国家农业中的重要性。可见,无论对我国还是世界各国,家庭农场对未来农业的发展至关重要。近年来,我国各地家庭农场蓬勃兴起,但总体处于起步阶段,普遍面临大量的资金需求问题。然而,由于金融具有营利性,金融组织自然不会主动将资源投向发展相对弱小的家庭农场。同时,家庭农场的生产经营受到农业弱质产业性质的影响,无法有效吸引金融资金的投入。这就需要国家对金融资源配置进行宏观调控,为家庭农场的金融支持提供法律保障。目前,关于支持家庭农场的具体金融措施大都以政策形式存在,并未赋予法律效力。如此情形下,家庭农场金融支持的法律问题便应运而生。法理学的实质正义理论和经济法的宏观调控理论为家庭农场金融支持奠定了坚实的理论基础。实践中,家庭农场金融供给与需求的矛盾也反映出金融对家庭农场支持的必要性。为此,笔者从两方面入手,解决家庭农场金融支持面临的法律问题:一是剖析家庭农场自身存在的法律障碍,这是家庭农场获得金融支持的前提;二是从农村金融组织形式的视角,考察农村合作性金融、政策性金融和商业性金融组织在服务家庭农场过程中存在的法律问题,这是家庭农场获得资金的关键。从家庭农场自身角度考虑,第一,其认定标准和组织形式不确定,即法律地位不明确。在与金融组织的信贷法律关系中,家庭农场无法成为合格的承贷主体,进而影响其信贷资金的获得。第二,由于土地承包经营权抵押存在法律障碍,且家庭农场缺乏有效抵押资产,导致其融资能力受限。第三,我国大部分地区家庭农场信用评级体系缺失,金融组织出于信贷资产安全性考虑,减少对家庭农场的融资贷款。从农村金融组织角度考虑,目前,农村各类金融组织在支持家庭农场方面,存在以下法律问题:农村合作性金融组织缺乏服务“三农”的有效激励,专门立法缺位;农村政策性金融组织在业务范围、职能定位以及监管制度方面存在立法缺陷;农村商业性金融组织支农法律制度供给不足,新型农村金融组织法律供给缺位。本文参考相关学者研究成果以及最新法规、规范性法律文件的规定,借鉴美国、加拿大、法国、日本等发达国家的合作性、政策性金融支持家庭农场法律制度;运用文献研究法、比较分析法和演绎归纳法,针对上述两方面问题,提出相应的法律对策。一方面,就家庭农场自身而言:应当依法确立家庭农场的市场准入标准,并赋予其自主选择法律组织形式的权利,以此来明确它的法律地位。修改《担保法》等相关法律,允许农村土地承包经营权、宅基地使用权和房屋成为抵押权客体,积极拓宽抵质押担保物范围;同时,创新金融服务方式,家庭农场适用联保贷款制度。此外,应当尽快建立家庭农场的信用评级体系,具体通过确定评级主体,明确评级客体,规定评级时效来完成。另一方面,就农村金融组织而言:应当创新合作性金融组织运行机制,即家庭农场作为社员拥有合作金融的产权,合作金融组织只向社员提供金融产品和服务,实现民主管理;并且制定专门法律予以保障。政策性金融组织需要明确其职能定位,区分政策性业务和商业性业务;农业发展银行的业务范围应当涵盖家庭农场。通过修改《商业银行法》相关规定,确保商业性金融组织对农业信贷的投放比例,建立浮动利率制度,完善再贷款制度,从而扩大农村资金供应量;并增加新型农村金融组织县域网点布局,立足于服务“三农”,创新其财税优惠法律制度。家庭农场金融支持法律问题是一个崭新的法律课题。现有研究主要集中在经济学和金融学领域,笔者尝试从法律层面剖析家庭农场金融支持所面临的困境。并试图把家庭农场与农村商业性、政策性、合作性金融组织紧密相联,从中找出家庭农场金融支持法律问题的解决路径。
[Abstract]:Since 2013, family farms have been appearing in the No. 1 document of the Central Committee for many years. Because of their characteristics of scale, intensiveness and commercialization, family farms have become an inevitable trend in the development of modern agriculture in China. In recent years, family farms have flourished in various parts of China, but they are still in the initial stage, generally facing a large number of capital needs. However, because of the profitability of finance, financial organizations will not take the initiative to invest resources in the development of relatively weak. At the same time, the production and operation of family farms are affected by the nature of weak agricultural industries, which can not effectively attract financial investment. This requires the state to macro-control the allocation of financial resources to provide legal protection for the financial support of family farms. In this case, the legal problems of family farm financial support arise. The substantive justice theory of jurisprudence and the Macro-control Theory of economic law lay a solid theoretical foundation for family farm financial support. In practice, the contradiction between the supply and demand of family farm finance is also reversed. Therefore, the author starts from two aspects to solve the legal problems facing the financial support of family farms: one is to analyze the legal obstacles existing in family farms, which is the premise for family farms to obtain financial support; the other is to examine rural cooperative finance from the perspective of rural financial organization form. From the perspective of the family farm itself, firstly, the criteria and organization form of the family farm are uncertain, that is, the legal status is not clear. In the credit legal relationship with the financial organization, the family farm can not. Second, due to the legal obstacles in the mortgage of land contractual management rights and the lack of effective mortgage assets on family farms, their financing capacity is limited. Third, the lack of credit rating system on family farms in most parts of China, financial organizations out of the security test of credit assets. Considering from the perspective of rural financial organizations, there are the following legal problems in supporting family farms: rural cooperative financial organizations lack effective incentives to serve "agriculture, rural areas and farmers" and lack of special legislation; rural policy financial organizations have definite functions in their business scope. This paper refers to the research results of relevant scholars, the latest laws and regulations, the provisions of normative legal documents, and the cooperation of developed countries such as the United States, Canada, France and Japan. On the one hand, as far as the family farm itself is concerned, it should establish the market access standard of the family farm according to law and give it the right to choose the form of legal organization independently. In order to clarify its legal status, we should amend the relevant laws, such as the Guarantee Law, to allow the contractual management right of rural land, the use right of homestead and the house to become the object of mortgage, and actively expand the scope of pledge collateral; at the same time, we should innovate the financial service mode and apply the joint guarantee loan system to the family farm. In addition, we should establish the family farm as soon as possible. Credit rating system can be accomplished by defining the subject of rating, defining the object of rating and prescribing the time limit of rating. Policy-oriented financial organizations need to define their functions and distinguish between policy-oriented and commercial businesses. The scope of business of the Agricultural Development Bank should cover family farms. By amending the relevant provisions of the Commercial Bank Law, the ratio of agricultural credit to commercial financial organizations should be ensured. Establishing a floating interest rate system, improving the re-lending system, thereby expanding the supply of rural funds; and increasing the distribution of new rural financial organizations in the county, based on serving the "three rural" and innovating their fiscal and tax preferential legal system. In the field of science and finance, the author tries to analyze the dilemma faced by family farm financial support from the legal level, and tries to link family farm closely with rural commercial, policy-oriented and cooperative financial organizations, so as to find out the solution to the legal problems of family farm financial support.
【学位授予单位】：山西财经大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.28
[Abstract]:Since 2013, family farms have been appearing in the No. 1 document of the Central Committee for many years. Because of their characteristics of scale, intensiveness and commercialization, family farms have become an inevitable trend in the development of modern agriculture in China. In recent years, family farms have flourished in various parts of China, but they are still in the initial stage, generally facing a large number of capital needs. However, because of the profitability of finance, financial organizations will not take the initiative to invest resources in the development of relatively weak. At the same time, the production and operation of family farms are affected by the nature of weak agricultural industries, which can not effectively attract financial investment. This requires the state to macro-control the allocation of financial resources to provide legal protection for the financial support of family farms. In this case, the legal problems of family farm financial support arise. The substantive justice theory of jurisprudence and the Macro-control Theory of economic law lay a solid theoretical foundation for family farm financial support. In practice, the contradiction between the supply and demand of family farm finance is also reversed. Therefore, the author starts from two aspects to solve the legal problems facing the financial support of family farms: one is to analyze the legal obstacles existing in family farms, which is the premise for family farms to obtain financial support; the other is to examine rural cooperative finance from the perspective of rural financial organization form. From the perspective of the family farm itself, firstly, the criteria and organization form of the family farm are uncertain, that is, the legal status is not clear. In the credit legal relationship with the financial organization, the family farm can not. Second, due to the legal obstacles in the mortgage of land contractual management rights and the lack of effective mortgage assets on family farms, their financing capacity is limited. Third, the lack of credit rating system on family farms in most parts of China, financial organizations out of the security test of credit assets. Considering from the perspective of rural financial organizations, there are the following legal problems in supporting family farms: rural cooperative financial organizations lack effective incentives to serve "agriculture, rural areas and farmers" and lack of special legislation; rural policy financial organizations have definite functions in their business scope. This paper refers to the research results of relevant scholars, the latest laws and regulations, the provisions of normative legal documents, and the cooperation of developed countries such as the United States, Canada, France and Japan. On the one hand, as far as the family farm itself is concerned, it should establish the market access standard of the family farm according to law and give it the right to choose the form of legal organization independently. In order to clarify its legal status, we should amend the relevant laws, such as the Guarantee Law, to allow the contractual management right of rural land, the use right of homestead and the house to become the object of mortgage, and actively expand the scope of pledge collateral; at the same time, we should innovate the financial service mode and apply the joint guarantee loan system to the family farm. In addition, we should establish the family farm as soon as possible. Credit rating system can be accomplished by defining the subject of rating, defining the object of rating and prescribing the time limit of rating. Policy-oriented financial organizations need to define their functions and distinguish between policy-oriented and commercial businesses. The scope of business of the Agricultural Development Bank should cover family farms. By amending the relevant provisions of the Commercial Bank Law, the ratio of agricultural credit to commercial financial organizations should be ensured. Establishing a floating interest rate system, improving the re-lending system, thereby expanding the supply of rural funds; and increasing the distribution of new rural financial organizations in the county, based on serving the "three rural" and innovating their fiscal and tax preferential legal system. In the field of science and finance, the author tries to analyze the dilemma faced by family farm financial support from the legal level, and tries to link family farm closely with rural commercial, policy-oriented and cooperative financial organizations, so as to find out the solution to the legal problems of family farm financial support.
【学位授予单位】：山西财经大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.28
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