农村土地抵押法律问题研究
发布时间：2018-09-03 17:07
【摘要】：三农问题的核心是土地问题,而土地问题的实质是土地权利问题,本文的研究对象为农村土地抵押法律问题。全文以私法的视角诠释农村土地抵押基本法律问题,并综合运用历史、比较、价值和实证的研究方法,依循明晰制度语境、考察实践现状、夯实制度根基和构造具体制度的路径展开研究。本文除导论外,共分为五章,共计十九余万字。第一章农村土地抵押的制度语境。我国古代农村土地抵押的习惯法规则杂乱且不成体系,实践中多以土地或田宅为抵押担保,然其习惯法具有封闭性,并受限于传统农地生产经营方式;近代以降,固有习惯价值式微,抵押等担保物权移植西方,抵押规则日益规范化和体系化,制定了诸多农村金融法规,且设置土地金融机构,但并未与近代金融组织的成长相结合。现代的土地承包经营权和农民住房财产权抵押,在国家政策层面上已获肯定,却未有相应的法律运行机制与之相适应。现行立法中农村土地抵押制度法律供给不足,且行使范围过窄,城乡土地使用权差别对待;不同类型的农村土地使用权具有不同的抵押能力;土地权利形态的多元化趋向明显,不同的农村土地使用权形态能否抵押取决于立法选择。土地兼具自然属性、经济属性和社会属性,其经济属性彰显私益性,社会属性承受公益负担;实现土地资本化是农村土地抵押的内在动因,与城市成熟的制度相较,民法的视域里尚欠缺适格的农村土地抵押法律规范和制度安排。第二章农村土地抵押的实证考察。选取安徽省12个地级市24个乡镇为样本进行实证调研,同时撷取国内试点地区的实践范例,以明晰土地抵押制度在农村社会中运作的实然状态,寻求建构农村土地抵押制度的可靠私法路径。土地承包经营权抵押试点呈规模性扩张态势,多以合作金融和政策性金融为主,表现为直接抵押、由第三方担保抵押、组建合作社抵押、信托和土地证券化等诸多形式;绝大多数试点地区都对抵押率、抵押期限以及土地规模等设定了一定的条件。宅基地使用权抵押脱离不了房地关系的现实困境,“房地一体”原则限制宅基地使用权抵押,须以有限抵押的制度设计激发宅基地用益物权的经济效益。经营性集体建设用地使用权可以抵押,但公益性集体建设用地使用权一般不得抵押;集体建设用地使用权抵押常发生于再次土地流转的情形,一般需经集体土地所有权人同意;法律限制了集体建设用地使用权抵押的有效性、抵押价值不明显,且抵押融资的金融服务欠缺。通过分梳与厘定各地区农村土地抵押的制度模式、运行效果和法律障碍,为其后的制度构造提供样本与现实素材。第三章农村土地抵押的制度基础。从基础理论分析,根据大陆法系传统和国外立法例,用益物权具备一定可处分性,权利亦可成为抵押权之客体;农村土地权利抵押,实乃价值权的支配,其承载着担保与融资双项功能。农村土地抵押的制度构建以土地产权理论、资源配置优化论和权利配置正义论等为理论基础,在价值目标上以平等为基础、以自由为追求、以秩序为保障、效率优先并兼顾公平,并恪守尊重农民主体地位和保护农民利益的权利本位理念。农村集体土地权利改造的现实主义路径是坚持集体土地所有制,实行土地使用权的市场化和资本化。我国以集体土地所有权为基石的三层级结构中,土地承包经营权、宅基地使用权和集体建设用地使用权的用益物权性质及其可处分性,为土地抵押制度的构建提供了制度基础。农村土地抵押的内部结构上理应体现实质正义,在确保债权实现的前提下,施以对抵押人的特殊保护:抵押人的主体范围具有开放性,而抵押权人的主体范围应予以限制;为体现效率价值,应取消须经第三方“同意”或“审批”等前置程序,以便利于抵押人设置抵押权;通过限定土地面积或抵押物的担保价值、设置保险、建立抵押风险基金等方式对抵押人予以保障性制度安排;抵押权实现时,同等条件下应赋予本农民集体成员基于成员权的优先回赎权。第四章农村土地抵押的法律构造。基于现实国情和抵押权客体的特殊性,农村土地权利抵押制度并不能被一般的抵押规则所涵括,其在抵押的主体、客体、设定、效力及实现方式等制度构造的诸多方面具有特殊性。抵押人的主体范围具有开放性,农民集体成员,及农民集体以外的家庭农场、农民合作社、农业企业等其他组织或个人,皆可能成为抵押人的主体;为防控农村土地抵押的金融风险、保障农民的基本生存权利和防止土地兼并,抵押权人的主体范围应逐步限定在专门的金融机构——土地银行。土地承包经营权抵押的客体为土地经营权,经营权从承包经营权中分离独立为新的权利类型,土地经营权抵押不改变土地的所有权性质、不改变土地的承包关系;土地承包经营权抵押与农地收益权质押相区别,后者之标的是“债权性流转收益”而非土地经营权本身。宅基地使用权抵押的客体为宅基地使用权,但其主体范围不应限于农民集体成员,其原始取得可按农民集体成员资格分配宅基地用地指标,但因继受而取得可实行有偿有期使用制度。集体建设用地抵押的客体一般为经营性或存量的集体建设用地使用权。农村土地抵押的法律框架内,可规定权利类型及其取得、建立有偿使用制度和期限制度、规范抵押方式等。土地承包经营权抵押的方式包括直接抵押、组建合作社抵押、由第三方担保抵押、土地承包经营权股份化抵押。宅基地使用权实行有限抵押制度,即新增宅基地使用权具备完备的物权权能,允许在其上设定抵押,而对存量宅基地遵循“无偿取得、有偿使用、有限抵押”的原则,允许存量宅基地使用权在满足一定条件时抵押。集体建设用地使用权抵押涵括所有权人抵押和使用权人抵押两种形式。此外,土地承包经营权抵押的效力不能及于农作物。宅基地使用权抵押,则地上的房屋随之抵押;因房屋抵押权实现而导致房屋所有权与宅基地使用权主体不一致时,可通过法律推定租赁合同的存在而予解决。抵押处置时应赋予作为抵押人的农民或其他农民集体成员优先回赎权;为确保农村土地抵押权的实现,亦可通过创设农村土地抵押风险基金、设置强制保险、实行土地区分制度和政府风险补偿制度等多种手段构筑面向抵押人的多边利益保障机制。第五章农村土地抵押的制度配套。基于公共利益和土地社会保障功能之考量,应从抵押主体、部分抵押、抵押用途、抵押方式、经济能力、土地规划与用途管制等诸方面对农村土地抵押权的行使予以合理限制。作为抵押人的农民,须有稳定的收入来源、财力证明或从事稳定的非农职业,而抵押权人限定为专门的金融机构;实行部分抵押原则,对农村土地面积和抵押物价值予以限制;抵押的贷款只能用于涉农的生产、投资和开发项目;农村土地抵押必须严格遵守土地利用总体规划和土地用途管制。健全农村土地权利登记制度,农村土地权利的取得与抵押权的设定实行登记生效主义。构建有中国特色的土地银行,作为以土地抵押贷款为主要业务的专门政策性金融机构,其资金筹措可通过财政出资入股和发行土地债券实现。此外,尚需构筑农村土地权利收储与市场交易中心、建立农村土地使用权的价值评估制度、完善农村社会保障制度和财税制度等相关配套作为抵押运行的支撑。
[Abstract]:The core of the three rural issues is the land issue, and the essence of the land issue is the land rights issue. The research object of this paper is the legal issue of rural land mortgage. In addition to the introduction, this paper is divided into five chapters, a total of more than 190,000 words. Chapter 1: The institutional context of rural land mortgage. The law is closed and limited by the traditional mode of farmland production and management; since modern times, the inherent customary value has declined, mortgage and other security rights have been transplanted to the West, mortgage rules have become increasingly standardized and systematic, many rural financial regulations have been formulated, and land financial institutions have been set up, but not integrated with the growth of modern financial organizations. The right to land contractual management and the mortgage of peasants'housing property rights have been affirmed at the national policy level, but there is no corresponding legal operation mechanism to adapt to it. The same mortgage capacity; the diversification of land right forms is obvious, and whether different forms of rural land use right can be mortgaged depends on legislative choice. Motivation, compared with the mature urban system, there is still a lack of qualified legal norms and institutional arrangements for rural land mortgage in the perspective of civil law. Chapter 2: Empirical investigation of rural land mortgage. The system operates in the rural society and seeks a reliable private law path to construct the rural land mortgage system. Most of the experimental areas have set certain conditions for mortgage rate, mortgage term and land scale. Mortgage of the right to the use of homestead can not be separated from the real dilemma of the relationship between housing and land. The principle of "integration of housing and land" restricts the mortgage of the right to the use of homestead, and the system design of limited mortgage must stimulate the economy of the usufructuary right of homestead. Economic Benefits: The right to the use of collective construction land for profit may be mortgaged, but the right to the use of collective construction land for public welfare may not be mortgaged generally; the mortgage of the right to the use of collective construction land often occurs in the case of re-circulation of land, and generally requires the consent of the owner of collective land; the validity of the mortgage of the right to the use of collective construction land is limited by law to offset it. Chapter 3: The institutional basis of rural land mortgage. From the basic theory analysis, according to the tradition of continental law system and foreign countries Legislative example shows that usufructuary right is disposable and right can be the object of mortgage. Mortgage of rural land right is actually the control of value right, which bears the dual functions of guarantee and financing. The value goal is based on equality, pursued by freedom, guaranteed by order, given priority to efficiency and given consideration to fairness, and abided by the right-based concept of respecting the principal status of peasants and protecting the interests of peasants. In the three-tier structure based on collective land ownership, the nature and disposability of land contractual management right, homestead use right and collective construction land use right provide the institutional foundation for the construction of land mortgage system. The internal structure of rural land mortgage should embody substantive justice and ensure it. Under the premise of creditor's rights realization, special protection should be given to the mortgagor: the subject scope of the mortgagor is open, and the subject scope of the mortgagor should be limited; in order to embody the efficiency value, the pre-procedure such as "consent" or "examination and approval" by the third party should be cancelled, so as to facilitate the mortgagor to set up the mortgage; by limiting the land area or by limiting the mortgagee's subject scope Guarantee value of collateral, setting up insurance, setting up mortgage risk fund and so on should be guaranteed to the mortgagor. When the mortgage is realized, the peasant collective members should be given the priority of redemption based on membership under the same conditions. Chapter IV Legal structure of rural land mortgage. The mortgage system of rural land rights can not be included in the general mortgage rules. It has its particularity in the subject, object, setting, effect and way of realization of the mortgage. In order to prevent and control the financial risks of rural land mortgage, protect the basic survival rights of farmers and prevent land annexation, the main scope of the mortgagee should be gradually limited to a special financial institution - land bank. The mortgage of land management right does not change the nature of land ownership, nor does it change the contractual relationship of land; the mortgage of land contractual management right is different from the pledge of farmland income right, the latter is not the land management right itself. The object of mortgage of the right to use is the right to use the homestead, but its subject scope should not be limited to the peasant collective members. The original acquisition of mortgage of the right to use the homestead can distribute the land index according to the peasant collective membership, but the system of paid fixed-term use can be implemented if it is acquired through succession. Land use right. Within the legal framework of rural land mortgage, the types of rights and their acquisition can be stipulated, the system of paid use and term can be established, and the mode of mortgage can be standardized. Limited mortgage system is adopted for the right to use the newly added homestead, that is, the right to use the newly added homestead has complete property rights and allows mortgage to be set on it, while the principle of "free acquisition, paid use, limited mortgage" is followed for the existing homestead, allowing the right to use the existing homestead to mortgage when certain conditions are met. In addition, the validity of the mortgage of the land contractual management right can not be equal to that of the crops. If the mortgage of the right to use the homestead is realized, the house on the ground will be mortgaged accordingly; if the ownership of the house is inconsistent with the subject of the right to use the homestead, the lease contract can be presumed by law. In order to ensure the realization of the rural land mortgage right, we can also establish the risk fund of rural land mortgage, set up compulsory insurance, implement the land division system and the government risk compensation system and so on. Chapter 5: The system of rural land mortgage. Considering the public interest and the function of land social security, we should restrict the exercise of rural land mortgage from the aspects of mortgage subject, partial mortgage, mortgage use, mortgage mode, economic capacity, land planning and use control. Farmers who are mortgagors must have a stable source of income, prove their financial resources or engage in stable non-agricultural occupations, while the mortgagors are limited to specialized financial institutions; the principle of partial mortgage is applied to restrict the area of rural land and the value of mortgaged property; mortgaged loans can only be used for agricultural production, investment and development projects; and rural land mortgage. We must strictly abide by the general plan of land use and the control of land use.We must improve the registration system of rural land rights and implement the principle of registration effectiveness in the acquisition and mortgage of rural land rights.We should build a land bank with Chinese characteristics as a special policy-oriented financial institution with land mortgage as its main business. In addition, it is necessary to construct a rural land rights storage and market trading center, establish a rural land use right value evaluation system, improve the rural social security system and fiscal and taxation system as the support of mortgage operation.
【学位授予单位】：西南政法大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：D923.2
，
本文编号：2220629
[Abstract]:The core of the three rural issues is the land issue, and the essence of the land issue is the land rights issue. The research object of this paper is the legal issue of rural land mortgage. In addition to the introduction, this paper is divided into five chapters, a total of more than 190,000 words. Chapter 1: The institutional context of rural land mortgage. The law is closed and limited by the traditional mode of farmland production and management; since modern times, the inherent customary value has declined, mortgage and other security rights have been transplanted to the West, mortgage rules have become increasingly standardized and systematic, many rural financial regulations have been formulated, and land financial institutions have been set up, but not integrated with the growth of modern financial organizations. The right to land contractual management and the mortgage of peasants'housing property rights have been affirmed at the national policy level, but there is no corresponding legal operation mechanism to adapt to it. The same mortgage capacity; the diversification of land right forms is obvious, and whether different forms of rural land use right can be mortgaged depends on legislative choice. Motivation, compared with the mature urban system, there is still a lack of qualified legal norms and institutional arrangements for rural land mortgage in the perspective of civil law. Chapter 2: Empirical investigation of rural land mortgage. The system operates in the rural society and seeks a reliable private law path to construct the rural land mortgage system. Most of the experimental areas have set certain conditions for mortgage rate, mortgage term and land scale. Mortgage of the right to the use of homestead can not be separated from the real dilemma of the relationship between housing and land. The principle of "integration of housing and land" restricts the mortgage of the right to the use of homestead, and the system design of limited mortgage must stimulate the economy of the usufructuary right of homestead. Economic Benefits: The right to the use of collective construction land for profit may be mortgaged, but the right to the use of collective construction land for public welfare may not be mortgaged generally; the mortgage of the right to the use of collective construction land often occurs in the case of re-circulation of land, and generally requires the consent of the owner of collective land; the validity of the mortgage of the right to the use of collective construction land is limited by law to offset it. Chapter 3: The institutional basis of rural land mortgage. From the basic theory analysis, according to the tradition of continental law system and foreign countries Legislative example shows that usufructuary right is disposable and right can be the object of mortgage. Mortgage of rural land right is actually the control of value right, which bears the dual functions of guarantee and financing. The value goal is based on equality, pursued by freedom, guaranteed by order, given priority to efficiency and given consideration to fairness, and abided by the right-based concept of respecting the principal status of peasants and protecting the interests of peasants. In the three-tier structure based on collective land ownership, the nature and disposability of land contractual management right, homestead use right and collective construction land use right provide the institutional foundation for the construction of land mortgage system. The internal structure of rural land mortgage should embody substantive justice and ensure it. Under the premise of creditor's rights realization, special protection should be given to the mortgagor: the subject scope of the mortgagor is open, and the subject scope of the mortgagor should be limited; in order to embody the efficiency value, the pre-procedure such as "consent" or "examination and approval" by the third party should be cancelled, so as to facilitate the mortgagor to set up the mortgage; by limiting the land area or by limiting the mortgagee's subject scope Guarantee value of collateral, setting up insurance, setting up mortgage risk fund and so on should be guaranteed to the mortgagor. When the mortgage is realized, the peasant collective members should be given the priority of redemption based on membership under the same conditions. Chapter IV Legal structure of rural land mortgage. The mortgage system of rural land rights can not be included in the general mortgage rules. It has its particularity in the subject, object, setting, effect and way of realization of the mortgage. In order to prevent and control the financial risks of rural land mortgage, protect the basic survival rights of farmers and prevent land annexation, the main scope of the mortgagee should be gradually limited to a special financial institution - land bank. The mortgage of land management right does not change the nature of land ownership, nor does it change the contractual relationship of land; the mortgage of land contractual management right is different from the pledge of farmland income right, the latter is not the land management right itself. The object of mortgage of the right to use is the right to use the homestead, but its subject scope should not be limited to the peasant collective members. The original acquisition of mortgage of the right to use the homestead can distribute the land index according to the peasant collective membership, but the system of paid fixed-term use can be implemented if it is acquired through succession. Land use right. Within the legal framework of rural land mortgage, the types of rights and their acquisition can be stipulated, the system of paid use and term can be established, and the mode of mortgage can be standardized. Limited mortgage system is adopted for the right to use the newly added homestead, that is, the right to use the newly added homestead has complete property rights and allows mortgage to be set on it, while the principle of "free acquisition, paid use, limited mortgage" is followed for the existing homestead, allowing the right to use the existing homestead to mortgage when certain conditions are met. In addition, the validity of the mortgage of the land contractual management right can not be equal to that of the crops. If the mortgage of the right to use the homestead is realized, the house on the ground will be mortgaged accordingly; if the ownership of the house is inconsistent with the subject of the right to use the homestead, the lease contract can be presumed by law. In order to ensure the realization of the rural land mortgage right, we can also establish the risk fund of rural land mortgage, set up compulsory insurance, implement the land division system and the government risk compensation system and so on. Chapter 5: The system of rural land mortgage. Considering the public interest and the function of land social security, we should restrict the exercise of rural land mortgage from the aspects of mortgage subject, partial mortgage, mortgage use, mortgage mode, economic capacity, land planning and use control. Farmers who are mortgagors must have a stable source of income, prove their financial resources or engage in stable non-agricultural occupations, while the mortgagors are limited to specialized financial institutions; the principle of partial mortgage is applied to restrict the area of rural land and the value of mortgaged property; mortgaged loans can only be used for agricultural production, investment and development projects; and rural land mortgage. We must strictly abide by the general plan of land use and the control of land use.We must improve the registration system of rural land rights and implement the principle of registration effectiveness in the acquisition and mortgage of rural land rights.We should build a land bank with Chinese characteristics as a special policy-oriented financial institution with land mortgage as its main business. In addition, it is necessary to construct a rural land rights storage and market trading center, establish a rural land use right value evaluation system, improve the rural social security system and fiscal and taxation system as the support of mortgage operation.
【学位授予单位】：西南政法大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：D923.2
，
本文编号：2220629
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