Study On The Legal System Of Rural Land’s Mortgage Financing Function’s Realization

As an important and new rural land’s function, the mortgage financing function is afavorable efficacy to raise funds based on the economic attributes of rural land. The financingfunction is decided by the economic attributes of rural land and the special significance ofrural land to peasants, and is also decided by the development trend of the market economysystem’s perfecting and the urbanization level’s deepening. The financing function has manyways of realization, including transferring of financing, subcontracting, leasing, sharing,trusting and securitization etc. The mortgage financing is one of the important ways to realizethe financing function. The mortgage financing function is the narrow sense of financingfunction, and is the study object of this paper.From the existing legal provisions, the mortgage financing function is in the institutionalinhibitory state, and thus causes a series of negative effect. The problems of agriculture, ruralareas, and peasants have always been intertwined and complicated. Any problem to draw theright conclusions should be comprehensive consideration, and so is the problem of mortgagefinancing function. The full realization of the mortgage financing function is required by ruralfinancial market reform’s deepening and the effective protection of property right andfinancing right, and the realization of mortgage financing function is possible with the ruralsocial security systems’ perfection. To realize the mortgage financing function must be basedon the rural land collective ownership system and the rural land-use right system’s perfection,and needs to follow three basic principles, including adhering to the moderate governmentintervention, balanced protecting stakeholders and taking into account other functions. Torealize the mortgage financing function needs to perfect the rural land mortgage system, andalso needs to set up or perfect self-contained complete systems, including the rural land’sregistration system, the rural land’s price evaluation system, the rural land’s circulationsystem, the economic incentive system for rural land’s mortgage, the land use control systemand the compensation system of land expropriation.Except for the introduction and conclusion, the thesis is divided into six chapters.Chapter1,“Advancing the Rural Land’s Financing Function and Investigating the RuralLand’s Mortgage Financing Function”, two problems are discussed. One is the basictheoretical issues of the rural land’s financing function, including the concept of rural land’s financing function and rural land’s mortgage financing function, the realization way of ruralland’s financing function, the attributes of rural land’s financing function and the proposedreason of rural land’s financing function. The rural land’s mortgage financing function is thestudy object of this paper. The reason is that personal ability is unable to undertake the grandstudy project of rural land’s financing function. But, the main reason is that the rural land’smortgage financing function is so important and the corresponding legal system should benecessary to be perfected. Another is the rural land’s mortgage financing function’sinvestigating from the view of system. From the existing legal provisions, the mortgagefinancing function is in the institutional inhibitory state, and thus causes a series of negativeeffect. The reason that the mortgage financing function is in the institutional inhibitory state isvery complex. The “control” from government is the deep reason, and the fundamental reasonis the stable preference of government and the philosophy of legal paternalism.Chapter2,“Theoretical Analysis of the Rural Land’s Mortgage Financing Function’sRealization”, Firstly, several ideas of theoretical analysis about the rural land’s mortgagefinancing function’s realization are outlined, and a little reflection is discussed. This paperbelieves that theoretical analysis must have a more wide theoretical horizons. Secondly, theurgency and possibility of the rural land’s mortgage financing function’s realization isdiscussed from the rural financial market reform, the protection of peasants’ financing rightand property right, the social security system’s reform. The realization of land mortgagefinancing function is the inevitable need from the rural financial market reform’s deepening,is the original meaning to protect peasants’ property right and is the cornerstone to safeguardthe peasants’ financing right effectively. The increasingly perfect rural social security systemhas laid a solid foundation to realize the rural land’s mortgage financing function.Chapter3,“Investigating the Practice of Rural Land’s Mortgage Financing System fromHome and Abroad”, on the one hand, the developed countries’ related system is investigated,such as Germany and American. On another hand, the domestic practice is investigated, suchas Mei-tan, Cheng-du, Tong-xin, Tian-men and Shou-guang.Chapter4,“Discussing the Theoretical Route of the Rural Land’s Mortgage FinancingFunction’s Realization”, three problems are discussed. Firstly, the perfection of the rural landcollective ownership system is discussed. The rural land collective ownership system shouldbe adhered currently, and should be necessarily perfected. The key is to construct the personalrepresentative of the rural land’s ownership. Secondly, the perfection of the rural land-use right system is discussed. The perfection of the rural land-use right system is the preconditionof the rural land mortgage financing’s implementation. Except for perfecting the farmland-useright system, the key is to perfet the Township Enterprises land-use right system and theHomestead land-use right system comprehensively. Thirdly, the basic principles of the RuralLand’s Mortgage Financing Function’s Realization are discussed, including adhering to themoderate government intervention, balanced protecting stakeholders and taking into accountother functions.Chapter5,“Perfecting the Subject System of the Rural Land’s Mortgage FinancingFunction’s Realization”, three problems are discussed. Firstly, the range of rural landmortgage is defined. The farmland can be mortgaged, the Homestead land should bemortgaged according to the conditions and the Township Enterprises land can be mortgagedindividually. Secondly, the enactment of rural land mortgage is defined, including thedefinition of mortgagor’s qualification, the definition of ownership’s status, the enactment ofmortgage term, mortgagee’s definition, mortgage’s registration and mortgage rates’determination. Thirdly, the realization of mortgage is discussed, including the way ofrealization, the definition of alienee’s range, appropriate protection of peasants’ rights andinterests, protecting rights of the organization’s members.Chapter6,“Constructing the Self-contained Complete Systems of the Rural Land’sMortgage Financing Function’s Realization”, several problems are discussed, including therural land’s registration system, the rural land’s price evaluation system, the rural land’scirculation system, the economic incentive system for rural land’s mortgage, the land usecontrol system and the compensation system of land expropriation.