“三权分置”下农村土地承包权继承研究
发布时间：2018-10-22 08:20
【摘要】：农村土地承包经营权对于农民来说是一项非常重要的财产性权利,其能否继承更是与农民的切身利益息息相关。随着农村社会经济的发展,实践中承包经营权被分置为承包权和经营权,其中经营权越来越多的被流转出去。为了顺应农民保留承包权、流转经营权的意愿,中央也正式提出了农村土地所有权、承包权、经营权“三权分置”的改革方向,并发布了一系列相关文件。在此基础上,笔者认为对于农村土地承包经营权能否继承的讨论转变成对承包权能否继承的讨论比较符合中央土地改革的精神。由于我国现行法律中虽然对土地承包经营权的继承略有涉及但没有明确细致的法律条文对其进行规定,理论界一直存在对于该权利能否继承的争论,司法实践中也存在操作难题。因此,农村土地承包权的继承问题无论在法律规定上还是在实践操作中都是迫切需要解决的问题。现今,根据中央对农村土地改革提出的“稳定农村土地承包关系并保持长久不变”的要求以及土地所有权、承包权、经营权“三权分置”的改革方向来看,正是讨论土地承包权可继承性的好时机。由于土地承包权是基于“三权分置”的提出而分置出来,因此,本文首先阐述了“三权分置”及“三权分置”下土地承包权的内涵,同时分析了“三权分置”下农村土地承包权继承的必要性。然后通过对中国裁判文书上2016年发生的土地承包经营权继承纠纷案件的裁判文书进行了梳理、总结,分析了集体所有权与土地承包经营权“两权分置”时农村土地承包经营权继承纠纷案件审理的司法现状,并总结了其存在的问题。根据上述分析,笔者认为,土地所有权、承包权、经营权“三权分置”的提出、中央一贯坚持的“稳定土地承包关系并保持长久不变”的政策要求、以及在农村经济的不断发展中农民对土地功能认识的转变,都预示着承认土地承包权的可继承性才是符合中央土地改革精神,与时俱进,能够最大程度发挥农村土地的价值,保护农民利益的最优选择。最后,本文在前述分析的基础上,总结了“三权分置”下农村土地承包权继承存在的障碍并提出了克服路径,希望能够在新一轮的农村土地改革中贡献一份力量。
[Abstract]:The right of contracted management of rural land is a very important property right for farmers, and its inheritance is closely related to the vital interests of farmers. With the development of rural society and economy, the contractual management right is divided into contract right and management right in practice, among which more and more management rights are transferred out. In order to comply with the will of farmers to retain contract right and transfer management right, the central government has formally put forward the reform direction of "three separate rights" of rural land ownership, contract right and management right, and issued a series of related documents. On this basis, the author thinks that the discussion on whether the rural land contract management right can be inherited can be transformed into the discussion on whether the contract right can be inherited, which is more in line with the spirit of central land reform. Although the inheritance of the right of land contracting management is slightly involved in the current law of our country, but there is no clear and detailed legal provisions to regulate it, there has always been a debate in the theoretical circle as to whether the right can be inherited. There are also operational problems in judicial practice. Therefore, the inheritance of rural land contract right is an urgent problem to be solved both in law and practice. At present, according to the request of the central government for the rural land reform to "stabilize the rural land contract relationship and keep it unchanged for a long time," and the reform direction of land ownership, contract right and management right, "three rights are divided", It is a good time to discuss the inheritance of land contract right. Because the land contract right is based on the "three rights division", this paper first expounds the connotation of the land contract right under the "three rights separate structure" and "three right split structure". At the same time, it analyzes the necessity of the inheritance of rural land contract right under the "three rights division". Then, through combing and summing up the adjudicative documents of the disputes over the succession of land contracting management rights that occurred in 2016 in China's adjudicative documents, This paper analyzes the judicial status quo of the inheritance dispute cases of rural land contractual management right when collective ownership and land contractual management right "two rights are divided", and summarizes the existing problems. According to the above analysis, the author believes that the policy requirement of "stabilizing the land contract relationship and keeping it unchanged for a long time" has been consistently adhered to by the central government in proposing the "three separate rights" of land ownership, contract right and management right. The change of farmers' understanding of land function in the continuous development of rural economy indicates that the recognition of the inheritance of land contracting right is in line with the spirit of central land reform, keeping pace with the times, and can maximize the value of rural land. The best choice to protect the interests of farmers. Finally, on the basis of the above analysis, this paper summarizes the obstacles existing in the inheritance of the rural land contract right under the "three rights division" and puts forward some ways to overcome it, hoping to contribute to the new round of rural land reform.
【学位授予单位】：安徽财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：F321.1
本文编号：2286625
[Abstract]:The right of contracted management of rural land is a very important property right for farmers, and its inheritance is closely related to the vital interests of farmers. With the development of rural society and economy, the contractual management right is divided into contract right and management right in practice, among which more and more management rights are transferred out. In order to comply with the will of farmers to retain contract right and transfer management right, the central government has formally put forward the reform direction of "three separate rights" of rural land ownership, contract right and management right, and issued a series of related documents. On this basis, the author thinks that the discussion on whether the rural land contract management right can be inherited can be transformed into the discussion on whether the contract right can be inherited, which is more in line with the spirit of central land reform. Although the inheritance of the right of land contracting management is slightly involved in the current law of our country, but there is no clear and detailed legal provisions to regulate it, there has always been a debate in the theoretical circle as to whether the right can be inherited. There are also operational problems in judicial practice. Therefore, the inheritance of rural land contract right is an urgent problem to be solved both in law and practice. At present, according to the request of the central government for the rural land reform to "stabilize the rural land contract relationship and keep it unchanged for a long time," and the reform direction of land ownership, contract right and management right, "three rights are divided", It is a good time to discuss the inheritance of land contract right. Because the land contract right is based on the "three rights division", this paper first expounds the connotation of the land contract right under the "three rights separate structure" and "three right split structure". At the same time, it analyzes the necessity of the inheritance of rural land contract right under the "three rights division". Then, through combing and summing up the adjudicative documents of the disputes over the succession of land contracting management rights that occurred in 2016 in China's adjudicative documents, This paper analyzes the judicial status quo of the inheritance dispute cases of rural land contractual management right when collective ownership and land contractual management right "two rights are divided", and summarizes the existing problems. According to the above analysis, the author believes that the policy requirement of "stabilizing the land contract relationship and keeping it unchanged for a long time" has been consistently adhered to by the central government in proposing the "three separate rights" of land ownership, contract right and management right. The change of farmers' understanding of land function in the continuous development of rural economy indicates that the recognition of the inheritance of land contracting right is in line with the spirit of central land reform, keeping pace with the times, and can maximize the value of rural land. The best choice to protect the interests of farmers. Finally, on the basis of the above analysis, this paper summarizes the obstacles existing in the inheritance of the rural land contract right under the "three rights division" and puts forward some ways to overcome it, hoping to contribute to the new round of rural land reform.
【学位授予单位】：安徽财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：F321.1
【参考文献】
相关期刊论文 前1条
1 李宗录;王德梅;;论“三权分置”中土地承包权与经营权的权利性质[J];石家庄学院学报;2017年01期
，本文编号：2286625
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