我国林地承包经营权抵押法律问题研究

发布时间：2018-06-18 08:57

本文选题：林地承包经营权 + 抵押贷款　；参考：《西南政法大学》2014年硕士论文

【摘要】：2013年，中国银监会与国家林业局联合印发的《关于林权抵押贷款的实施意见》提出“林农承包经营的商品林可以通过银行抵押贷款的方式获取经营资金”，实现了林业资源变资本的历史性突破。集体林地的承包经营权1按照取得方式不同分为家庭承包和其他方式承包。立法对这两种林地承包经营权能否抵押采取了不同的态度，其限制主要体现在禁止家庭方式承包的林地承包经营权作为抵押标的。然而，通过集体林权的主体改革，，我国大部分林区均是采用家庭承包方式，亟需融资发展林业的主体主要是林区的农户，因此立法关于林地承包经营权抵押的规定已然不能满足社会实践的需要。本文从法学视角对家庭承包的林地承包经营权抵押展开从理论到实践的系统性论证，结合林地承包经营权抵押制度设立中面临的一些法律难题，提出一些完善的建议，力图为完善林地承包经营权抵押制度的构建，实现林农增收，贡献绵薄之力。本文除引言和结语外，共三部分，约2万字。第一部分，林地承包经营权抵押概述。本部分首先对林地承包经营权的概念进行界定，其次通过分析林地承包经营权抵押试点中存在的抵押模式，明确林地承包经营权抵押法律关系中的借款人主要是取得林权证的林农，债权人是银行业等金融机构，抵押客体是林木所有权和林地承包经营权。现行立法禁止以家庭形式承包的林地承包经营权作为抵押标的，原因之一是林地承包经营权对农民的社会保障作用。本部分最后从林地的自然属性、社会功能不同于耕地，林地承包经营权具备抵押物的一般条件，林地承包经营权抵押不一定会使林农丧失林地，且能够满足林业发展的资金需求，激发农村经济发展的内动力等方面阐述林地承包经营权抵押制度建立的可行性和必要性。第二部分，影响林地承包经营权抵押制度实施的法律问题。本部分从家庭承包的林地承包经营权抵押违反现行法律，抵押权实现面临诸多风险和抵押配套措施不健全三方面阐述。首先，林地承包经营权抵押在立法上的不足主要体现在以家庭方式承包的林地承包经营权抵押违反现行法律，林地林木抵押关系不明确，法律禁止森林资源重复抵押。其次，抵押权的实现存在一定风险，表现在林业资产的产业风险、市场流转风险和采伐限额风险三方面。最后，完善的森林资产评估机制和森林保险可以大大降低抵押权人的风险，保障林地承包经营权抵押顺利开展，但我国森林资产评估机制和森林保险仍有不足。如缺乏独立的评估主体、评估人员专业素质低、评估费用不合理。林业生长过程具有一定的风险，对保险应当有潜在的强烈要求，然而实践中林农的投保积极性并不高，其中既有林农自身原因，也有森林保险机构供给不足的原因。第三部分，完善林地承包经营权抵押制度的对策。加强林地承包经营权抵押的政策宣传，引导群众参与林地承包经营权抵押融资。本文作者提出首先从立法上完善林地承包经营权抵押的法律依据：允许家庭承包的林地承包经营权抵押。明确林地抵押时及于林木；林木抵押不及于林地。允许林地承包经营权重复抵押及确定抵押权实现顺位。其次降低抵押权实现风险，保护抵押权人的利益：建立林地流转市场，开展多元化的抵押权实现方式；构建合理的采伐制度；赋予抵押权人变价处分权、优先受偿权、救济权，充分保护其利益，以吸引更多资金。最后还要完善林地承包经营权抵押制度的配套设施，包括建全森林资产评估机制和森林保险制度，具体措施有规范森林资产评估标准、提高评估人员素质、降低评估费用；将森林保险纳入政府统筹范围、实行省级森林统一保险、不断创新新险种，适应林农需求。
[Abstract]:In 2013, the China Banking Regulatory Commission (CBRC) and the State Forestry Bureau jointly issued an opinion on the implementation of the forest rights mortgage. "The commercial forest for the contracted management of the forest farmers can obtain the operating funds through the way of the bank mortgage loan" to achieve a historical breakthrough in the change of the capital of the forestry resources. The contract management right of the collection forestland is 1 according to the method of acquisition. The same is divided into family contract and other way contract. The legislation has taken different attitudes to the two kinds of land contract management right, which is mainly embodied in the forestland contracted management right of the household contract as the mortgage. However, the majority of our forest areas are adopted by the family contractor through the reform of the collective forest rights. The main part of forestry development is mainly the farmers in the forest area, so the legislation about the mortgage of the contractual management right of woodland can't meet the needs of the social practice. From the legal perspective, this paper carries out a systematic demonstration from the theory to the practice of the mortgage of the contracted management of the land contracted by the family from the perspective of law, and combines the mortgage of the contractual management right of the woodland. Some legal problems are faced in the establishment of the system, and some perfect suggestions are put forward to improve the construction of the mortgage system for the contractual management right of the woodland, and to realize the income increase of the forest farmers and contribute a little effort.
In addition to the introduction and conclusion, this paper consists of three parts, about 2 words.
The first part is the outline of the land contract management right mortgage. First, this part defines the concept of the land contract management right. Secondly, through the analysis of the mortgage mode in the pilot project of the contractual management right of the woodland, the creditor is the banking industry, the creditor is the banking industry, the creditor is the banking industry, the creditor is the banking industry. As a financial institution, the object of mortgage is the ownership of forest wood and the right to contracted management of woodland. The current legislation prohibits the contractual management right of woodland contracted in the form of family as a mortgage, one of the reasons is the social security role of the contractual management right of woodland to the peasants. The operation right of the package has the general condition of the mortgage, and the mortgage of the contractual management right of the woodland does not necessarily cause the forest farmers to lose the forest land, and can satisfy the fund demand of the forestry development, and stimulate the internal power of the rural economic development, and expounds the feasibility and necessity of the establishment of the mortgage system of the forestland contract management right.
The second part, the legal issues affecting the implementation of the mortgage system of the contractual management right of woodland. This part from the family contracted land contract management rights mortgage in violation of the current law, the mortgage right to achieve many risks and mortgage supporting measures are not perfect three aspects. The mortgaged land contract management right is in violation of the current law, the forest forest mortgage relationship is not clear, the law prohibits the repeated mortgage of forest resources. Secondly, the realization of the mortgage right has certain risks, which is manifested in three aspects of the industrial risk, the market circulation risk and the cutting quota risk. Finally, the perfect evaluation of the forest assets. The evaluation mechanism and forest insurance can greatly reduce the risk of the mortgages and guarantee the smooth development of the land contract management right, but the forest assets evaluation mechanism and the forest insurance are still inadequate in our country. For example, the lack of independent evaluation body, low professional quality of the assessors and unreasonable cost of evaluation. There should be a strong potential for risk, however, in practice, the enthusiasm of the farmers is not high, in which there are both the reasons for the forest farmers themselves and the reasons for the shortage of the forest insurance institutions.
The third part is to improve the Countermeasures of the mortgage system of the contractual management right of the woodland, strengthen the policy propaganda of the land contract management right mortgage, guide the masses to participate in the mortgage financing of the contractual management right of the woodland. The author proposes the legal basis of perfecting the mortgage of the contractual management right of the woodland from the legislature first: to allow the mortgage of the contracted management right of the woodland. It is clear that the forest land is mortgaged when it is mortgaged; the forest mortgage is less than the woodland. It allows the repeated mortgage of the land contract management right and the realization of the right of mortgage. Secondly, it reduces the mortgage right to realize the risk and protects the interests of the mortgagee: to establish the market of the forest land circulation, to carry out a diversified way of realizing mortgage, and to build a rational logging system; The mortgaor has the right to dispose of the price, giving priority to the right to receive compensation and the right of relief to fully protect its interests in order to attract more funds. Finally, we should improve the supporting facilities for the mortgage system of the forestland contract management right, including the establishment of the forest assets assessment mechanism and the forest insurance system, and the concrete measures to standardize the evaluation standards of the forest assets and improve the quality of the assessors. Reduce the cost of assessment; incorporate forest insurance into the overall planning of the government, implement unified forest insurance at the provincial level, and continuously innovate new insurance to meet the needs of forest farmers.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.3

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