我国土地承包经营权流转的法律完善
发布时间：2018-10-12 21:11
【摘要】：任何法律行为都是由主体、客体和法律内容构成的,当然土地承包经营权也不例外,其主体是承包人,承包人具有身份属性,通常都是集体内部成员;其客体是农户或组织从事生产经营活动所用之土地;其权能内容是一种权利,即对其所承包土地享有占有、使用的权利;其设定目的是为了方便从事农业耕收活动。我国现允许的土地流转形式包括转让、出租、转包、入股、互换等形式,却不甚完善。从我国土地制度发展演进的角度来看,土地承包经营权的流转历经了从禁止至逐步放开的阶段,在每个特定的时期规定都不尽相同,但整体看来,土地流转的趋向是在范围以及速率上均持续加大,因此,本文试图厘清各流转方式的性质以及他们之间的关系,为完善我国土地的流转方式添砖加瓦。中共十八届三中全会关于《全面深化改革若干重大问题的决定》(以下简称《决定》)第20条规定,坚持农村土地集体所有权,依法维护农民土地承包经营权,发展壮大集体经济。稳定农村土地承包关系并保持长久不变,在坚持和完善最严格的耕地保护制度前提下,赋予农民对承包地占有、使用、流转、收益及承包经营权抵押、担保权能,允许农民以承包经营权入股发展农业产业化经营。《决定》还提出将土地经营权从土地承包经营权中分离出来,建立所有权、经营权、承包权三权分置的农地权利体系,这对土地的流转起到了一定的促进作用。本文也是根据这个观点在文章的第四部分着重分析了土地流转的方式,为后文的法律完善提供了有力论据。中国现在通用的土地承包经营权体制有着突出问题,是因为该制度被赋予太多的功能并且法律权能严重缺乏。有关的政策与法律赋予了土地承包经营权以政治方面、社会方面以及经济方面等覆盖面非常广泛的种种制度功能,是为了能同时满足国家、社会、集体和个人等所有相关主体的多样性诉求。不同的制度功能诉求的价值目标各不相同,以至于其相互之间存在结构性冲突在所难免,因此不仅使得制度功能超载负荷为土地承包经营权制度所不能承载,同时使得农村结构性紧张局面进一步加剧。另一方面,土地承包经营权在相关实体法、程序法以及特别法上,其具体的法律权能严重缺失,并且对权利主体的保护功能显然不充分,反过来又会制约其制度功能得以有效地发挥。本文在最后一部分就是要在完善其制度功能的情况下,能够使其各种全能都得以充分发挥,具有稳定法律涵义和完美法律权能,从而最大限度地保护农民的利益。
[Abstract]:Any legal act is composed of subject, object and legal content, of course, the right of land contract management is no exception, its main body is the contractor, the contractor has the identity attribute, usually is the collective internal member; Its object is the land used by farmers or organizations to engage in production and management activities; its power content is a kind of right, that is, it has the right to occupy and use the contracted land, and its purpose is to facilitate farming and income activities. The forms of land circulation are not perfect, such as transfer, lease, subcontract, equity acquisition, exchange and so on. From the perspective of the development and evolution of the land system in China, the circulation of the land contractual management right has gone through the stage from prohibition to gradual liberalization, and the regulations are different in each specific period, but the overall view is that, The trend of land circulation is increasing in scope and speed. Therefore, this paper tries to clarify the nature of each circulation mode and the relationship between them, so as to contribute to the improvement of land circulation mode in China. Article 20 of the third Plenary session of the 18th CPC Central Committee on "comprehensively deepening several important issues of Reform" (hereinafter referred to as "the decision") stipulates that the collective ownership of rural land shall be adhered to, the right of peasants to contract and manage the land shall be safeguarded according to law, and the collective economy shall be developed and strengthened. Stabilizing the rural land contract relationship and keeping it unchanged for a long time, under the premise of upholding and perfecting the strictest cultivated land protection system, giving farmers the right to mortgage, guarantee and guarantee the possession, use, circulation, income and contractual management rights of the contracted land, The decision also proposes to separate the land management right from the land contract management right and establish a system of farmland rights with three rights of ownership, management and contracting. This has played a certain role in promoting the circulation of land. According to this viewpoint, the fourth part of the article focuses on the analysis of land circulation, which provides a strong argument for the later legal perfection. There are outstanding problems in China's current land contractual management system because it is endowed with too many functions and the legal power is seriously lacking. The relevant policies and laws have given the land contractual management right a wide range of institutional functions, covering a wide range of political, social and economic aspects, in order to meet the needs of the country and the society at the same time. Diversity claims of all relevant subjects, such as collectives and individuals. The value objectives of different system function demands are different, so it is inevitable that there are structural conflicts between them, so not only makes the system function overload load can not be carried by the land contract management right system. At the same time make rural structural tension further intensified. On the other hand, in the relevant substantive law, procedural law and special law, the specific legal power of the land contractual management right is seriously lacking, and the protection function of the right subject is obviously inadequate. In turn, it will restrict its institutional function to play an effective role. The last part of this paper is to improve its system function, can make its various omnipotence can give full play, has the stable legal meaning and the perfect legal power, thus protects the farmer's benefit to the maximum extent.
【学位授予单位】：河南财经政法大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.32
本文编号：2267605
[Abstract]:Any legal act is composed of subject, object and legal content, of course, the right of land contract management is no exception, its main body is the contractor, the contractor has the identity attribute, usually is the collective internal member; Its object is the land used by farmers or organizations to engage in production and management activities; its power content is a kind of right, that is, it has the right to occupy and use the contracted land, and its purpose is to facilitate farming and income activities. The forms of land circulation are not perfect, such as transfer, lease, subcontract, equity acquisition, exchange and so on. From the perspective of the development and evolution of the land system in China, the circulation of the land contractual management right has gone through the stage from prohibition to gradual liberalization, and the regulations are different in each specific period, but the overall view is that, The trend of land circulation is increasing in scope and speed. Therefore, this paper tries to clarify the nature of each circulation mode and the relationship between them, so as to contribute to the improvement of land circulation mode in China. Article 20 of the third Plenary session of the 18th CPC Central Committee on "comprehensively deepening several important issues of Reform" (hereinafter referred to as "the decision") stipulates that the collective ownership of rural land shall be adhered to, the right of peasants to contract and manage the land shall be safeguarded according to law, and the collective economy shall be developed and strengthened. Stabilizing the rural land contract relationship and keeping it unchanged for a long time, under the premise of upholding and perfecting the strictest cultivated land protection system, giving farmers the right to mortgage, guarantee and guarantee the possession, use, circulation, income and contractual management rights of the contracted land, The decision also proposes to separate the land management right from the land contract management right and establish a system of farmland rights with three rights of ownership, management and contracting. This has played a certain role in promoting the circulation of land. According to this viewpoint, the fourth part of the article focuses on the analysis of land circulation, which provides a strong argument for the later legal perfection. There are outstanding problems in China's current land contractual management system because it is endowed with too many functions and the legal power is seriously lacking. The relevant policies and laws have given the land contractual management right a wide range of institutional functions, covering a wide range of political, social and economic aspects, in order to meet the needs of the country and the society at the same time. Diversity claims of all relevant subjects, such as collectives and individuals. The value objectives of different system function demands are different, so it is inevitable that there are structural conflicts between them, so not only makes the system function overload load can not be carried by the land contract management right system. At the same time make rural structural tension further intensified. On the other hand, in the relevant substantive law, procedural law and special law, the specific legal power of the land contractual management right is seriously lacking, and the protection function of the right subject is obviously inadequate. In turn, it will restrict its institutional function to play an effective role. The last part of this paper is to improve its system function, can make its various omnipotence can give full play, has the stable legal meaning and the perfect legal power, thus protects the farmer's benefit to the maximum extent.
【学位授予单位】：河南财经政法大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.32
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