土地承包经营权转让合同效力探析
发布时间：2018-07-15 14:18
【摘要】：土地承包经营权的转让问题牵涉到各方的巨大利益,受到了法学理论界和实务界的积极关注。为了能够妥善解决这一问题,学者们提出了许多理论上的建议,各地也进行了很多实践上的探索。本文主要是从合同效力的视角,研究承包经营权的转让问题。也就是说,在通过整理大量司法判决书的基础上,提炼出了影响转让合同效力的若干强制性规范,从法学理论上进行详细的分析论证,表明了自己的观点,肯定了承包经营权的转让行为。 全文一共分为五个部分,第一部分简单介绍了司法判决书的整理情况,详细分析了法院在裁判转让合同效力方面的分歧,最后引出了所要分析的具体问题。第二部分从理论、立法两个方面,探讨了强制性规范与转让合同效力的关系。哪些规范属于强制性规范,哪些强制性规范能够影响合同的效力,理论上的研究不断深入,法律上的规定也不断的发生变化。在该部分的最后,对这两方面探索进行了分析和总结,提出了要从规范目的和规范利益两个方面,判断强制性规范是否影响合同的效力。 第三部分是全文的重点。我们以司法案例为切入点,以具体的条文规定为分析对象,综合考量《农村土地承包法》的规范性质和规范利益,通过价值判断和利益衡量,从四个方面论证了强制性规范与转让合同效力的关系。第一,论述了发包方同意与转让合同效力的关系。法律虽然规定土地承包经营权的转让要经发包方同意,但是做出这一规定的理由并不充分。第二,讨论了主体资格与转让合同效力的关系。对转让方与受让方的主体资格进行限制,不能影响合同的效力,并且需要反思这一立法目的,是否适应法政策和公共政策的变化；第三,论述了土地性质和用途与转让合同的效力。土地性质和用途是绝对禁止性的规定,一旦违反,转让合同就无效,并且还要承担公法上的处罚；第四,讨论了书面形式与转让合同的效力。土地承包经营权的转让牵涉到巨大的利益,而法定的书面形式是最基本的要求,否则会影响转让合同的效力；基于社会现实的考虑,也要区别对待,可以通过合同的履行补正形式的瑕疵。 第四部分,从立法和司法上提出了一些完善的建议。从理论上,进一步的论证了限制承包经营权的转让是不符合社会发展变化的；在立法上提出了一些完善的建议；最后,论述了法院在裁判案件时应选择什么样的解释方法,从而使具体的个案得到公平正义的解决。第五部分从宏观的角度对全文进行了总结,提出了最后的研究结论。
[Abstract]:The transfer of land contractual management right involves the great interests of all parties and has been actively concerned by the legal theorists and practitioners. In order to solve this problem properly, scholars have put forward many theoretical suggestions, and many practical explorations have been carried out in various places. This paper mainly studies the transfer of contractual management right from the perspective of contract effectiveness. That is to say, on the basis of sorting out a large number of judicial judgments, some mandatory norms affecting the effectiveness of transfer contracts have been refined, and detailed analysis and argumentation have been carried out from the legal theory, showing their own views. Confirmed the transfer of contractual management rights behavior. This paper is divided into five parts. The first part briefly introduces the arrangement of judicial judgments, analyzes in detail the differences in the validity of the transfer contract, and finally leads to the specific problems to be analyzed. The second part discusses the relationship between the mandatory norms and the validity of the transfer contract from the aspects of theory and legislation. Which norms belong to mandatory norms and which mandatory norms can affect the effectiveness of contracts, the theoretical study continues to deepen, the legal provisions are constantly changing. At the end of this part, the author analyzes and summarizes the two aspects, and puts forward that it is necessary to judge whether the mandatory norms affect the effectiveness of the contract from two aspects: the purpose of the norm and the interests of the norm. The third part is the focus of the paper. We take the judicial cases as the starting point, take the specific provisions as the analysis object, synthetically consider the normative nature and normative interests of the Rural Land contract Law, and measure the value and interests through the value judgment. The relationship between the mandatory norms and the validity of the transfer contract is demonstrated from four aspects. First, it discusses the relationship between the agreement of the issuing party and the validity of the contract of assignment. Although the law stipulates that the transfer of the land contractual management right is subject to the consent of the contracting party, the reasons for making this provision are not sufficient. Secondly, the relationship between the subject qualification and the validity of the transfer contract is discussed. The limitation of the subject qualification of the transferor and the transferee cannot affect the validity of the contract, and it is necessary to reflect on the legislative purpose and whether it adapts to the change of law and public policy. This paper discusses the nature and use of land and the validity of the contract of assignment. The nature and use of land is an absolute prohibition, once violated, the contract of assignment is void and subject to penalties in public law; fourthly, the written form and the validity of the contract of assignment are discussed. The transfer of the land contractual management right involves enormous interests, and the legal written form is the most basic requirement. Otherwise, it will affect the effectiveness of the transfer contract; on the basis of social realities, it should also be treated differently. Defects in the form may be corrected through the performance of the contract. The fourth part, put forward some perfect suggestions from legislation and judicature. Theoretically, it further demonstrates that restricting the transfer of contractual management right is not in line with the changes of social development; puts forward some perfect suggestions in legislation; finally, discusses what kind of interpretation method the court should choose when adjudicating a case. So that the specific cases can be solved fairly and justly. The fifth part summarizes the whole text from the macroscopic angle, and puts forward the final research conclusion.
【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】：D922.32
本文编号：2124354
[Abstract]:The transfer of land contractual management right involves the great interests of all parties and has been actively concerned by the legal theorists and practitioners. In order to solve this problem properly, scholars have put forward many theoretical suggestions, and many practical explorations have been carried out in various places. This paper mainly studies the transfer of contractual management right from the perspective of contract effectiveness. That is to say, on the basis of sorting out a large number of judicial judgments, some mandatory norms affecting the effectiveness of transfer contracts have been refined, and detailed analysis and argumentation have been carried out from the legal theory, showing their own views. Confirmed the transfer of contractual management rights behavior. This paper is divided into five parts. The first part briefly introduces the arrangement of judicial judgments, analyzes in detail the differences in the validity of the transfer contract, and finally leads to the specific problems to be analyzed. The second part discusses the relationship between the mandatory norms and the validity of the transfer contract from the aspects of theory and legislation. Which norms belong to mandatory norms and which mandatory norms can affect the effectiveness of contracts, the theoretical study continues to deepen, the legal provisions are constantly changing. At the end of this part, the author analyzes and summarizes the two aspects, and puts forward that it is necessary to judge whether the mandatory norms affect the effectiveness of the contract from two aspects: the purpose of the norm and the interests of the norm. The third part is the focus of the paper. We take the judicial cases as the starting point, take the specific provisions as the analysis object, synthetically consider the normative nature and normative interests of the Rural Land contract Law, and measure the value and interests through the value judgment. The relationship between the mandatory norms and the validity of the transfer contract is demonstrated from four aspects. First, it discusses the relationship between the agreement of the issuing party and the validity of the contract of assignment. Although the law stipulates that the transfer of the land contractual management right is subject to the consent of the contracting party, the reasons for making this provision are not sufficient. Secondly, the relationship between the subject qualification and the validity of the transfer contract is discussed. The limitation of the subject qualification of the transferor and the transferee cannot affect the validity of the contract, and it is necessary to reflect on the legislative purpose and whether it adapts to the change of law and public policy. This paper discusses the nature and use of land and the validity of the contract of assignment. The nature and use of land is an absolute prohibition, once violated, the contract of assignment is void and subject to penalties in public law; fourthly, the written form and the validity of the contract of assignment are discussed. The transfer of the land contractual management right involves enormous interests, and the legal written form is the most basic requirement. Otherwise, it will affect the effectiveness of the transfer contract; on the basis of social realities, it should also be treated differently. Defects in the form may be corrected through the performance of the contract. The fourth part, put forward some perfect suggestions from legislation and judicature. Theoretically, it further demonstrates that restricting the transfer of contractual management right is not in line with the changes of social development; puts forward some perfect suggestions in legislation; finally, discusses what kind of interpretation method the court should choose when adjudicating a case. So that the specific cases can be solved fairly and justly. The fifth part summarizes the whole text from the macroscopic angle, and puts forward the final research conclusion.
【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】：D922.32
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