“三权分置”下“土地经营权”的法律制度构建研究
发布时间：2018-09-08 12:04
【摘要】：上世纪八十年代初家庭联产承包责任制的确立,使我国形成了 "集体土地所有权+农户土地承包经营权"的二元农地权利体系。至上世纪90年代初,经济学界针对地方以家庭承包方式取得的土地承包经营权流转实践中存在的土地承包经营权主体和土地实际经营主体分离的现象,创造性地提出农村土地"三权分离"的概念。直至2014年11月中央《关于引导农村土地经营权有序流转发展农业适度规模经营的意见》确立"实现所有权、承包权、经营权三权分置……坚持农村土地集体所有权,稳定农户承包权,放活土地经营权"的政策,标志着我国农地"三权分置"改革正式开启的改革。农地"三权分置",是针对我国现代农业的规模化和产业化发展要求设计的改革政策。该政策的核心在于"放活经营权",即对土地承包权与土地经营权进行法律上的分置,以使农地的实际经营者,即新型农业经营主体获得一种具有物权效力和抵押权能的财产权。该政策事实上是"稳定农村土地承包关系并保持长久不变"政策的延伸,体现了农村集体土地所有权制度的内在要求。面对发展适度规模化和产业化的现代农业与农村"空心化"问题,家庭联产承包责任的弊端及现行农地流转制度不足的矛盾,推行农地"三权分置"改革确属必要。但是农地"三权分置"政策以经济学的产权理论为基础,并无法完全与法学上的权利理论相衔接。对于"三权分置"下"土地经营权"的法律制度构建,首先应当厘清政策文本中集体土地所有权、土地承包权和土地经营权三者的关系。其次,应当通过明确和完善集体成员权制度破解集体土地所有权主体虚位的问题。而所谓"土地承包权"正是集体成员权的一项重要内容,其是外在于土地承包经营权的一种权利,而不属于土地承包经营权的内容,所谓"承包"更不是土地承包经营权的一项权能。故土地承包经营权其实质就是农户对集体发包土地的经营权,而冠以"承包"二字是为了彰显其身份限制。而新型农业经营主体的土地经营权是农户以流转形式于一定期限内在其土地承包经营权之上设定负担的结果。再次,结合农地"三权分置"政策的主旨之一在于促进土地承包经营权的流转,故所谓农地"三权分置"在法律逻辑上应当阐述为:坚持集体土地所有权,稳定农户土地承包经营权,放活农业经营主体的土地经营权。其中,土地承包经营权为在集体土地所有权之上设立的用益物权,而土地经营权为在土地承包经营权之上设立的权利用益物权,二者为分属不同层次客体的用益物权,可以同时成立且不冲突。以此为基础,应当围绕土地经营权的取得与主体资格、权利内容与期限、抵押与处分、终止及法律救济等方面进行相关法律制度的构建。
[Abstract]:The establishment of the household contract responsibility system in the early eighties of last century has made our country form the dual farmland right system of "collective land ownership right of peasant household land contract management". At the beginning of 1990s, the economic circles aimed at the phenomenon of separation between the main body of land contract management right and the real land management subject, which existed in the circulation practice of the land contract management right obtained by the local people in the way of family contract. To creatively put forward the concept of "separation of three rights" of rural land. Until November 2014, the Central Committee's opinion on guiding the orderly circulation of rural land management right to develop agricultural moderate scale management has established "realizing the separation of ownership, contract right and management right." The policy of persisting in the collective ownership of rural land, stabilizing farmers' right to contract and activating the right to manage land marks the reform of the "three rights division" reform of agricultural land in China. The three rights division of farmland is a reform policy designed to meet the demands of the scale and industrialization development of modern agriculture in China. The core of the policy lies in "liberalizing the right of management", that is, the right of land contract and the right of land management are divided in law, so that the actual operator of agricultural land, that is, the main body of new agricultural management, can obtain a kind of property right which has the effect of real right and the right of mortgage. The policy is in fact an extension of the policy of "stabilizing the rural land contract relationship and keeping it unchanged for a long time", which reflects the inherent requirements of the rural collective land ownership system. In the face of the problem of moderate scale development and industrialization of modern agriculture and rural "hollowing", it is necessary to carry out the reform of agricultural land "three rights division" because of the malpractice of household contract responsibility and the contradiction of the current farmland transfer system. However, the policy of "three rights division" is based on the theory of property right in economics, and can not be fully connected with the theory of right in law. For the construction of the legal system of "land management right" under "three separate rights", we should first clarify the relationship among collective land ownership, land contract right and land management right in the policy text. Secondly, we should clear and perfect the system of collective membership right to solve the problem of collective land ownership. The so-called "land contract right" is an important part of the collective membership right. It is a kind of right outside of the land contractual management right, but not a content of the land contract management right. So-called "contract" is not a power of land contract management right. Therefore, the essence of the land contractual management right is the farmer's management right to the collective contract land, and the title "contracting" is to show its identity restriction. And the land management right of the new agricultural management subject is the result of setting the burden on the land contract management right of farmers in the form of circulation within a certain period. Thirdly, one of the gist of the policy is to promote the transfer of land contractual management right, so the legal logic of the so-called "three rights division of farmland" should be described as: adhere to collective land ownership. To stabilize the land contractual management right of farmers and to activate the land management rights of agricultural operators. Among them, the land contractual management right is the usufruct right established on the collective land ownership, and the land management right is the usufruct right established on the land contract management right. Can be held at the same time and not in conflict. On this basis, the relevant legal system should be constructed around the acquisition and qualification of the land management right, the content and time limit of the right, the mortgage and disposition, the termination and the legal relief and so on.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.32
，
本文编号：2230464
[Abstract]:The establishment of the household contract responsibility system in the early eighties of last century has made our country form the dual farmland right system of "collective land ownership right of peasant household land contract management". At the beginning of 1990s, the economic circles aimed at the phenomenon of separation between the main body of land contract management right and the real land management subject, which existed in the circulation practice of the land contract management right obtained by the local people in the way of family contract. To creatively put forward the concept of "separation of three rights" of rural land. Until November 2014, the Central Committee's opinion on guiding the orderly circulation of rural land management right to develop agricultural moderate scale management has established "realizing the separation of ownership, contract right and management right." The policy of persisting in the collective ownership of rural land, stabilizing farmers' right to contract and activating the right to manage land marks the reform of the "three rights division" reform of agricultural land in China. The three rights division of farmland is a reform policy designed to meet the demands of the scale and industrialization development of modern agriculture in China. The core of the policy lies in "liberalizing the right of management", that is, the right of land contract and the right of land management are divided in law, so that the actual operator of agricultural land, that is, the main body of new agricultural management, can obtain a kind of property right which has the effect of real right and the right of mortgage. The policy is in fact an extension of the policy of "stabilizing the rural land contract relationship and keeping it unchanged for a long time", which reflects the inherent requirements of the rural collective land ownership system. In the face of the problem of moderate scale development and industrialization of modern agriculture and rural "hollowing", it is necessary to carry out the reform of agricultural land "three rights division" because of the malpractice of household contract responsibility and the contradiction of the current farmland transfer system. However, the policy of "three rights division" is based on the theory of property right in economics, and can not be fully connected with the theory of right in law. For the construction of the legal system of "land management right" under "three separate rights", we should first clarify the relationship among collective land ownership, land contract right and land management right in the policy text. Secondly, we should clear and perfect the system of collective membership right to solve the problem of collective land ownership. The so-called "land contract right" is an important part of the collective membership right. It is a kind of right outside of the land contractual management right, but not a content of the land contract management right. So-called "contract" is not a power of land contract management right. Therefore, the essence of the land contractual management right is the farmer's management right to the collective contract land, and the title "contracting" is to show its identity restriction. And the land management right of the new agricultural management subject is the result of setting the burden on the land contract management right of farmers in the form of circulation within a certain period. Thirdly, one of the gist of the policy is to promote the transfer of land contractual management right, so the legal logic of the so-called "three rights division of farmland" should be described as: adhere to collective land ownership. To stabilize the land contractual management right of farmers and to activate the land management rights of agricultural operators. Among them, the land contractual management right is the usufruct right established on the collective land ownership, and the land management right is the usufruct right established on the land contract management right. Can be held at the same time and not in conflict. On this basis, the relevant legal system should be constructed around the acquisition and qualification of the land management right, the content and time limit of the right, the mortgage and disposition, the termination and the legal relief and so on.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.32
，
本文编号：2230464
本文链接：https://www.wllwen.com/falvlunwen/xingzhengfalunwen/2230464.html
