完善农地经营权入股法律制度研究
发布时间：2018-07-14 22:15
【摘要】：我国是一个农业大国,农村农业人口数量庞大,土地是其最重要的生产资料,如何以“土地”为要素使农民增收,一直是我国第一产业的重大问题。农地经营权入股从上世纪八九十年代的南海开始到现在,已经有将近三十年的发展历史,其在促进农民创收方面取得了显著的成效。同时,2014年中央一号文件、2015年中央一号文件,连续两年提到了加快农村土地改革,“稳定承包权、放活经营权”,增加农民的可支配性经济收入,促进城乡一体化建设。而在法律方面,《农村土地承包经营权流转管理办法》中关于“农地经营权流转”的主体仅限于“承包方”之间,显然会制约其发展进程。因此,完善农地经营权入股的法律制度是既符合实践发展的需要,同时又是国家政策的要求。本文主要从农地经营权入股的实践出发,采用实证分析方法和理论分析方法,对债权入股理论、物权入股理论以及以劳动力权入股为代表的新型理论等三大理论体系做了梳理和分析,得出以“租金”入股的债权模式才是最符合我国当前农村经济发展水平的。综合分析我国的农地经营权入股的各种经典模式,我们不难发现几乎所有的模式中都存在“保底分红”问题。这主要是基于我国当前的农村社会保障制度还很不完善,土地在很大程度上仍然承担着社会保障的功能。本文认为美国的优先股制度在红利的优先分配性质方面与我国“保底分红”有一定的契合性,因此,在《公司法》中引入优先股制度希望能对我国的“保底分红”的“市场化”产生一定的借鉴作用。完善农地经营权入股的法律制度,应当坚持“农民自愿”、“不改变土地农业用途”以及“因地制宜”等原则。同时修改滞后的法律,使得农地经营权入股的主体、经营体制、农民股东与公司债权人的权益保护等问题“法律化”。最后,我们还要正确定位政府在农地经营权入股制度中的地位,构建国家的“兜底”责任制度,消除债权人的投资顾虑,同时进一步完善农村的社会保障制度等等。
[Abstract]:Our country is a big agricultural country, the rural agricultural population is huge, the land is its most important means of production, how to use "land" as the factor to increase the farmers' income, has been the major problem of our country's primary industry. Since the beginning of the South China Sea in the 1980s and 1990s, the farmland management right has been developed for nearly 30 years, and it has achieved remarkable results in promoting farmers' income generation. At the same time, the first document of the Central Committee in 2014 and the No. 1 document of the Central Committee in 2015 mentioned speeding up the reform of rural land for two consecutive years, "stabilizing the right to contract and activating the right of management," to increase the dominant economic income of farmers and to promote the construction of integration between urban and rural areas. In the aspect of law, the main body of "transfer of farmland management right" in "rural land contract management right transfer management method" is limited between "contractor", obviously will restrict its development process. Therefore, perfecting the legal system of farmland management right to equity is not only in line with the needs of practical development, but also the requirement of national policy. Based on the practice of ownership of farmland management right, this paper uses the empirical analysis method and the theoretical analysis method to analyze the theory of creditor's rights equity. The theory of real right to buy shares and the new theory represented by labor right are combed and analyzed, and it is concluded that the mode of creditor's right to purchase shares in rent is the most suitable for the development level of rural economy in our country at present. Based on the comprehensive analysis of various classical modes of ownership of farmland management right in China, it is not difficult to find that almost all the models have the problem of "guaranteed bottom dividend". This is mainly based on the fact that the current rural social security system in China is still imperfect, and the land still bears the function of social security to a great extent. This paper holds that the preferred stock system in the United States has some agreement with China's "guaranteed dividend" in terms of the preferential distribution of dividends. It is hoped that the introduction of preferred stock system in Company Law will provide some reference to the marketization of "guaranteed dividend" in our country. In order to perfect the legal system of farmland management right, we should adhere to the principles of "voluntary farmers", "not changing the use of land agriculture" and "measures to suit local conditions". At the same time, the lagging laws should be amended so as to legalize the main body of farmland management right, the management system, the protection of the rights and interests of the farmers and the creditors of the company, and so on. Finally, we should correctly locate the position of the government in the system of farmland management right, construct the national "bottom" responsibility system, eliminate the investment worries of creditors, and further improve the rural social security system and so on.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.291.91
[Abstract]:Our country is a big agricultural country, the rural agricultural population is huge, the land is its most important means of production, how to use "land" as the factor to increase the farmers' income, has been the major problem of our country's primary industry. Since the beginning of the South China Sea in the 1980s and 1990s, the farmland management right has been developed for nearly 30 years, and it has achieved remarkable results in promoting farmers' income generation. At the same time, the first document of the Central Committee in 2014 and the No. 1 document of the Central Committee in 2015 mentioned speeding up the reform of rural land for two consecutive years, "stabilizing the right to contract and activating the right of management," to increase the dominant economic income of farmers and to promote the construction of integration between urban and rural areas. In the aspect of law, the main body of "transfer of farmland management right" in "rural land contract management right transfer management method" is limited between "contractor", obviously will restrict its development process. Therefore, perfecting the legal system of farmland management right to equity is not only in line with the needs of practical development, but also the requirement of national policy. Based on the practice of ownership of farmland management right, this paper uses the empirical analysis method and the theoretical analysis method to analyze the theory of creditor's rights equity. The theory of real right to buy shares and the new theory represented by labor right are combed and analyzed, and it is concluded that the mode of creditor's right to purchase shares in rent is the most suitable for the development level of rural economy in our country at present. Based on the comprehensive analysis of various classical modes of ownership of farmland management right in China, it is not difficult to find that almost all the models have the problem of "guaranteed bottom dividend". This is mainly based on the fact that the current rural social security system in China is still imperfect, and the land still bears the function of social security to a great extent. This paper holds that the preferred stock system in the United States has some agreement with China's "guaranteed dividend" in terms of the preferential distribution of dividends. It is hoped that the introduction of preferred stock system in Company Law will provide some reference to the marketization of "guaranteed dividend" in our country. In order to perfect the legal system of farmland management right, we should adhere to the principles of "voluntary farmers", "not changing the use of land agriculture" and "measures to suit local conditions". At the same time, the lagging laws should be amended so as to legalize the main body of farmland management right, the management system, the protection of the rights and interests of the farmers and the creditors of the company, and so on. Finally, we should correctly locate the position of the government in the system of farmland management right, construct the national "bottom" responsibility system, eliminate the investment worries of creditors, and further improve the rural social security system and so on.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.291.91
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