土地承包经营权股权化研究

发布时间：2018-06-19 05:04

本文选题：农民土地承包经营权 + 家庭土地承包经营权　；参考：《中央民族大学》2015年硕士论文

【摘要】：土地,民之本也,它是中国人民能够生产生活的基础,也是作为农业产业大国的中国的特色标志。即使现在城市化进程加快,国家不断地鼓励城市和农村向一体化方向发展,但是“三农”问题仍然是我们国家长期需要攻克的难题之一。最近一些年来,我国中央制定的政策着重加大改革的力度,其中农民的土地承包经营权的流转等系列问题一直以来是法律学界研究的热点和难点。土地承包经营权股权化是以土地承包经营权制度为基础的土地流转方式之一,也是近些年在农村地区兴起的土地承包经营权流转的新方式。土地承包经营权的股权化流转制度对优化农地利用、促进农业市场化发展有着不可或缺的重要意义,但是目前学界对该制度的研究相对较少,对于这项制度的结构设计也是众说纷纭。笔者发现土地承包经营权股权化的关键问题在于如何进行制度的构建,本文运用民法和合作社法的基本理论,依据我国的相关法律条文的规定和中央关于农村土地改革的政策以及各地的实践,讨论了农民土地承包经营权股权化的实践中的难点问题和基本理论问题。本文主要分为三章,对土地承包经营权的股权化制度进行研究。第一章,土地承包经营权股权化的价值定位。结合学者们对于股权化概念的不同认识为基础,笔者认为土地承包经营权股权化的内涵应界定为：土地承包经营权人以坚持土地的集体所有权属性为前提,将土地承包经营权作价入股农村合作社进行股份合作经营,或者将家庭承包方式以外的“招拍协”方式取得的承包经营权入股公司企业,从而取得所投资合作社或者公司企业的股权并以此获得利益分配的土地流转制度。关于土地承包经营权股权化性质的不同观点,即物权流转说、债权流转说和股权流转说,对其中的股权流转说表达了自己赞同的见解并且提出家庭承包经营权的股权化应当合作化的观点。以法的公平和效率的价值理念为根基,分析了农地承包经营权股权化的法律价值的含义和平衡,提出了若想要构建土地承包经营权股权化这一法律制度,就应当把焦点集中到农民与土地的依赖关系的特殊性上面,并且应以公平价值为基础、以效率价值为目标进行制度构建和完善。第二章,土地承包经营权股权化的相关法律规定和基本原则。首先,从法律、部分规章、地方性法规以及国家政策等方面归纳总结了股权化的相关法律规定现状,由此发现我国法律对农地承包经营权股权化的规定尚存较多漏洞和不足,应加强对该制度难点问题的研究,为继承和发展农地承包经营权的股权化给予理论上的支持。其次,由于承包经营权入股已是公认的土地承包经营权流转的方式之一,所以根据农地承包经营权流转的总体性原则,归纳总结出土地承包经营权股权化制度应恪守的原则理念。第三章,土地承包经营权股权化的难点问题。这一部分是本文的重点研究对象,分为土地承包经营权入股的内容、土地承包经营权入股的作价及其在合作社财产中的地位、承包经营权的期限对其股权化的影响等问题。首先,关于土地承包经营权股权化的内容,提出在一般情况下,应当是指经营权的入股,入股农民仍保留土地承包权。但是,还有一种整体入股的观点认为,在符合一定条件下,经过所在集体同意,也可以不区分承包权和经营权,而是将土地承包经营权进行整体入股。其次,在对土地承包经营权入股作价时,应当根据入股内容的不同进行作价并采取不同作价标准——对于以经营权能入股的,参照土地承包经营权出租的价格作价；对于以承包经营权整体入股的,应参照土地承包经营权转让的价格作价。关于土地承包经营权入股合作社后的利益分配、抵押、破产清算等一系列问题,笔者认为：第一,出于对土地的社会保障功能的考虑,土地承包经营权股权化的利益分配可以实行“保底收入”与“浮利分红”相结合的利益分配规则；第二,在允许土地经营权抵押的情况下,合作社可以以其取得的土地经营权进行抵押要基于农户的同意；第三,土地承包经营权不管是从社会保障的角度来看,还是从产权结构来分析都不适于纳入合作社破产财产进行清算,笔者同意赋予农户“等额回购权”的做法。笔者论述了承包经营权的期限性和承包经营权的长久化对承包经营权的股权化的影响和问题,并且提出了如何应对入股作价、退股和利益平衡的见解,为未来土地承包经营权股权化制度的发展与构建提供了理论预期。
[Abstract]:Land and people are also the basis of the Chinese people's ability to produce life. It is also a symbol of China as a big agricultural country. Even now the process of urbanization is speeding up, and the state constantly encourages cities and rural areas to develop in the direction of integration, but the "three rural" problem is still one of the problems that our country needs to overcome for a long time. In recent years, the policy made by the central government has been focused on strengthening the reform. The circulation of land contracted management rights of farmers has always been a hot and difficult point in the study of the legal field. The ownership of the land contracted management right is one of the land transfer modes based on the system of land contract management right and also in recent years. A new way of transferring land contract management right in rural areas. The system of the transfer of the right of land contract management has an indispensable and important significance to optimize the utilization of farmland and promote the development of agricultural market. However, there are few studies on the system in the academic circles at present, and the structure design of this system is also different. The key problem of the ownership of the land contract management right is how to build the system. In this paper, the practice of the civil law and the cooperative law, the relevant provisions of the law in China and the central government's policy on rural land reform and the practice of various places are discussed in this paper, and the practice of the ownership of the farmers' land contract management right is discussed. This paper is divided into three chapters. This article is mainly divided into three chapters. The first chapter is the value orientation of the ownership of the land contract management right. The author thinks that the connotation of the ownership of the land contract management right should be defined on the basis of the scholars' different understanding of the concept of the shareholding. On the premise of adhering to the collective ownership property of the land, the owner of the contracted management of land takes the land contract management right as a share in the cooperative operation of the rural cooperative, or shares the contractual management right obtained by the "bidding Association" outside the household contract way to the company enterprise, thus obtaining the co operatives or companies to invest. The different views on the nature of the ownership of the contractual management right of the land, that is, the transfer of property right, the transfer of creditor's rights and the theory of the transfer of equity, expressed their views on the transfer of equity, and put forward a view on the cooperation of the ownership of the contractual management right of the family. On the basis of the value concept of fairness and efficiency of law, this paper analyzes the meaning and balance of the legal value of the ownership of the farmland contracted management right, and puts forward that if we want to build the legal system of the ownership of the land contract management right, the focus should be focused on the particularity of the relationship between the peasants and the land, and the fair value should be taken. System construction and improvement on the basis of efficiency value. The second chapter, the relevant legal provisions and basic principles of the ownership of the land contract management rights. First, from the laws, some rules, local regulations and national policies and so on, summed up the status of the relevant legal provisions of the ownership of the ownership. There are still many loopholes and shortcomings in the regulation of the ownership of the rights of the package management. We should strengthen the research on the difficult problems of the system and give the theoretical support to inherit and develop the ownership of the farmland contract management right. Secondly, because the contracted management right has been one of the accepted ways of the transfer of the land contract management right, the contract management is based on the agricultural land. The general principle of the transfer of right, sum up the principle concept that the system of the ownership of the land contract management right should be abided by. The third chapter, the difficult problem of the ownership of the land contract management right. This part is the key research object of this article, which is divided into the content of the land contract management right, the price of the land contracted management right and its cooperation. The status of the social property and the influence of the term of the contractual management right on its shareholding. First, the content of the ownership of the contractual management right of the land is in general circumstances, which should refer to the stock of the management right, and the peasants still retain the land contract right. However, there is still a view that under certain conditions, After the collective consent of the group, it can also not distinguish the contract right and the right of management, but shares the land contract management right as a whole. Secondly, when the land contract management right is priced in, it should be priced according to the different content of the shares and take different standard of pricing - for the management of the rights and ability, the land contract management should be referred to. The price of the right to rent is made; for the overall purchase of the right to contracted management, the price of the transfer of the land contract management right should be referred to. A series of problems, such as the distribution of interests, mortgage and bankruptcy liquidation after the contracted management of land into the cooperative, are considered as follows: first, the consideration of the social security function of the land, the land contract The benefit distribution of the right to operate the right of management can be allocated by the combination of "bottom income income" and "floating dividend". Second, under the circumstances of allowing the land management right to be mortgaged, the co-operatives can mortgage their land management rights based on the consent of the farmers; third, the land contract management right is from the society. In the view of security, it is not suitable for the analysis of the property rights structure to be incorporated into the liquidation of the cooperative bankruptcy property. The author agrees to give the farmers "equal repurchase right". The author expounds the influence and problems of the term of the contractual management right and the long term contractual management right on the ownership of the contracted management rights. How to deal with the stock price, the withdrawal of shares and the balance of interests provide a theoretical expectation for the development and construction of the stock right system of the land contractual management right in the future.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：F321.1

【参考文献】