农村土地承包经营权流转法律探究
发布时间：2018-11-13 20:22
【摘要】：土地承包经营权是我国一项重要物权制度,法律对其承包主体有着严格的身份限制。作为一项重要的财产权,土地承包经营权要不断的适用市场经济体制改革的需要。为建立现代化农业,发展农村经济,提高农民的收入,加快实现社会主义新农村建设,必须对当前农村土地承包经营权制度进行改革。土地承包经营权改革的第一步就是要理清士地的产权制度,产权制度不清晰土地就难以顺利的实习流转,也就难以提高农民的土地流转收益。法律对不同承包方式取得土地承包经营权流转作出不同的规定,对通过其他方式取得土地承包经营权流转限制较少,允许其转让、出租、互换、抵押、入股等方式流转。但对家庭承包的土地承包经营权流转则限制过多,只允许其转让、出租、互换等方式流转,法律还不允许抵押和入股,法律对家庭土地承包经营权流转的限制,不仅限制了土地规模经营,剥夺农民的家庭承包融资的机会。对土地承包经营权的流转,立法上也经历了一个从不承认到逐步承认再到确立流转漫长演变过程。基于土地的生存保障功能、土地自由流转可能导致土地集中兼并等社会问题的担忧,立法上对土地承包经营权流转设置了诸多限制。因此理论界和实务界都在不断的对家庭承包经营权的流转机制进行探索。 土地承包经营权流转制度的变迁,标示着我国土地承包经营权流转制度在我国现在还处于才起步阶段,与国外成熟的农地流转制度相比较缺少可借鉴的经验模式,需要国家立法机关不断汲取国外的先进经验,同时也要根据实际情况允许各地不断进行探索。目前全国各地也在对土地承包经营权流转进行着各种形式的实践创新,各地实践创新中的问题由此也日益凸显,需要我们不断深入的理论研究和制度创新的实践来加以解决和完善。笔者根据在各地的调查研究,总结了一些个人的观点见解,希望以此能对我国农村土地承包经营权流转制度的探索和完善提供一些有益的尝试。
[Abstract]:Land contractual management right is an important real right system in our country, and the law has strict status restriction on its contracting subject. As an important property right, the right of land contract management should be continuously applied to the reform of market economy system. In order to establish modern agriculture, develop rural economy, raise farmers' income and accelerate the construction of new socialist countryside, we must reform the current system of contracted management right of rural land. The first step in the reform of land contractual management right is to clarify the property right system of the land. If the property right system is not clear, it is difficult to transfer the land smoothly, and it is difficult to improve the land circulation income of the peasants. The law makes different regulations on the transfer of land contractual management rights in different contracting ways, and has less restrictions on the transfer of land contractual management rights through other means, allowing them to transfer, lease, exchange, mortgage, and share ownership. However, there are too many restrictions on the transfer of the right to contract and manage the land contracted by the family. It is only allowed to transfer, lease, swap, and so on. The law does not allow mortgage or equity, and the law limits the transfer of the right to contract and manage the household land. Not only limited the scale of land management, depriving farmers of the opportunity to contract financing. The circulation of the right of land contract management has also undergone a long process of legislative evolution from never acknowledging to gradually acknowledging and then to establishing the circulation. Based on the function of land survival and security, the free circulation of land may lead to some social problems such as centralized annexation of land, so there are many restrictions on the transfer of land contract management right in legislation. Therefore, the theoretical and practical circles are constantly exploring the circulation mechanism of the right of household contracted management. The change of the transfer system of land contract management right indicates that the transfer system of land contract management right in our country is still in its infancy, and it lacks the experience mode which can be used for reference compared with the mature farmland transfer system abroad. It is necessary for national legislatures to draw on foreign advanced experience and to make continuous exploration according to the actual situation. At present, all parts of the country are carrying out various forms of practical innovation on the transfer of the land contractual management right, and the problems in the practice and innovation are becoming increasingly prominent. Need us to deepen the theoretical research and the practice of institutional innovation to solve and improve. Based on the investigation and research in various places, the author summarizes the opinions of some individuals, hoping to provide some beneficial attempts for the exploration and improvement of the circulation system of the contracted management right of rural land in China.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.32;D923.2
本文编号：2330324
[Abstract]:Land contractual management right is an important real right system in our country, and the law has strict status restriction on its contracting subject. As an important property right, the right of land contract management should be continuously applied to the reform of market economy system. In order to establish modern agriculture, develop rural economy, raise farmers' income and accelerate the construction of new socialist countryside, we must reform the current system of contracted management right of rural land. The first step in the reform of land contractual management right is to clarify the property right system of the land. If the property right system is not clear, it is difficult to transfer the land smoothly, and it is difficult to improve the land circulation income of the peasants. The law makes different regulations on the transfer of land contractual management rights in different contracting ways, and has less restrictions on the transfer of land contractual management rights through other means, allowing them to transfer, lease, exchange, mortgage, and share ownership. However, there are too many restrictions on the transfer of the right to contract and manage the land contracted by the family. It is only allowed to transfer, lease, swap, and so on. The law does not allow mortgage or equity, and the law limits the transfer of the right to contract and manage the household land. Not only limited the scale of land management, depriving farmers of the opportunity to contract financing. The circulation of the right of land contract management has also undergone a long process of legislative evolution from never acknowledging to gradually acknowledging and then to establishing the circulation. Based on the function of land survival and security, the free circulation of land may lead to some social problems such as centralized annexation of land, so there are many restrictions on the transfer of land contract management right in legislation. Therefore, the theoretical and practical circles are constantly exploring the circulation mechanism of the right of household contracted management. The change of the transfer system of land contract management right indicates that the transfer system of land contract management right in our country is still in its infancy, and it lacks the experience mode which can be used for reference compared with the mature farmland transfer system abroad. It is necessary for national legislatures to draw on foreign advanced experience and to make continuous exploration according to the actual situation. At present, all parts of the country are carrying out various forms of practical innovation on the transfer of the land contractual management right, and the problems in the practice and innovation are becoming increasingly prominent. Need us to deepen the theoretical research and the practice of institutional innovation to solve and improve. Based on the investigation and research in various places, the author summarizes the opinions of some individuals, hoping to provide some beneficial attempts for the exploration and improvement of the circulation system of the contracted management right of rural land in China.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.32;D923.2
【参考文献】
相关期刊论文 前10条
1 汪俊仁;;农村土地承包经营权流转的困境与突围——兼评物权法中农村土地承包经营权流转[J];北方经济;2009年14期
2 丁关良;;土地承包经营权流转中若干二元研究[J];长春市委党校学报;2007年05期
3 李钢;;农地流转与农民权益保护的制度安排[J];财经科学;2009年03期
4 魏晶雪;;农村土地制度的产权缺陷及改革思路[J];当代经济;2008年01期
5 湖北省委农办课题组;;湖北省农村土地规模经营情况调查[J];湖北社会科学;2008年04期
6 陈成文;赵锦山;;农村社会阶层的土地流转意愿与行为选择研究[J];湖北社会科学;2008年10期
7 顾钰民;;论土地承包经营权流转[J];复旦学报(社会科学版);2009年05期
8 陈小君;;农村土地制度的物权法规范解析——学习《关于推进农村改革发展若干重大问题的决定》后的思考[J];法商研究;2009年01期
9 丁关良;;农村土地承包经营权流转存在的法律问题与对策建议研究——以浙江省为例[J];法治研究;2009年08期
10 《黑龙江省农村土地产权流转制度改革研究》课题组;;黑龙江省农村土地承包经营权流转情况调查报告[J];北方经贸;2005年12期
相关博士学位论文 前1条
1 黄伟;我国农村承包地流转机制创新研究[D];西南财经大学;2011年
，本文编号：2330324
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