Study On The Mortgage System Of Management Right To Contracted Rural Land

Farmers'land property rights in China are not perfect to some extent,represented by the prohibition by current laws on creating mortgage right on rural land contract edmanagement rights?hereafter referred to as“land contracting and management rights”?acquired in the way of household contracting.However,as a scare resource,land possessed both use value and exchange value,the latter of which tended to be far higher than the former.In developed countries,land was generally allowed to be traded in the market to acquire its exchange value.In the early 21^th century,spontaneous mortgage of land contracting and management rights were seen in some rural areas of China.With large amount of rural workforce moved to towns,various attempts kept increasing.This phenomenon has caused academic attentions and studies,while the government also started to show concerns and provide support from policy aspects.And now,with affirmation and advocacy of related policies,pilots for mortgaging land contracting rights has been widely established.However,faced with prohibiting stipulations of law,the mortgage rules of land contracting and management rights in various pilots either“sailed against the current”or“took a detour”,thus resulting in the high cost,high risk and low efficiency of mortgages,yet didn't realize the maximization of farmers'benefits in lands.Therefore,what were the limitations for establishing the mortgage system of land contracting and management rights on the premise of sticking to the collective ownership system of rural land?What were the countermeasures?In order to answer these questions,this paper will have a through research on the relevant issues,and followed with targeting proposals.This paper will mainly include:Chapter One“Introduction”rasied the following questions:what were the limitations for establishing the mortgage system of land contracting and management rights to rural land on the premise of sticking to the collective ownership system of rural land?What were the countermeasures?After concluding the status of current academic studies and reviewing related domestic and foreign studies,an outlook for future studies was presented in this paper.Chapter Two was the in-depth and detailed analysis of limitations for mortgaging land contracting and management rights in practice and reasons for the limitations,such as farmers'land rights not being the primary value of institutional change,legal restrictions on value and power of land contracting and management rights,as well as absence of legal basis for the mortgage right to the land contracting and management rights,have altogether resulted in the deficiency of farmers'position as the subject of land property right.To avoid legal risks,mortgage of land contracting and management rights in practice generally attached more attention to security and less to benefits,which was manifested as diversified qualification scopes of mortgage right subjects,varied forms and low values of objects,as well as different mortgage types.In addition,reasons for the limitations also included mortgage risk disperse mechanism,implementation of mortgage,disposal of collaterals and emplacement of farmers who lost land after realization of mortgage.Chapter Three was the analysis of countermeasures to the limitations on mortgaging land contracting and management rights.“Second empowerment”to farmers and their position as the subject of land property right could be realized by improving the value and power of land contracting and management rights,taking land management right out,and allowing creation of mortgage rights on management right.The government should also construct the mortgage system of management right to contracted rural land through optionally referring to experience in farmland mortgage system of developed countries and territories.Based on comprehensive analysis on related regulations of the latest Rural Contracted Land Management Rights Mortgage Pilot Interim Measures,it was suggested in Chapter Four to establish mortgage system of management right to contracted rural land while sticking to the collective ownership of rural land,with such basic rules as constructing separate mortgage systems of land management right for“contracting farmers”and“new agricultural subjects”.Moreover,analyses were also made from perspectives of expanding scope of mortgage subject,definition of the nature of mortgage objects,relative consistence of mortgage types,period and validity of mortgage rights.In Chapter Five,the rules for imposition registration,punishment and implementation of mortgage rights were analyzed.It is recommended,to apply“registration”as the method of mortgage publication,from the perspective of“separation of three rights”.In addition,recommendations also included applying the rule of integrating“registration effectiveness”with“registration antagonism”,registering land contracting and management rights separately through the acquisition method based on“land”and taking the right certification authority of land management right as registration authority of mortgage right,punishment land management right only,and further,increasing“compulsory management”through implementation of mortgages farmers as mortgager.Disposal measures for mortgage objects were discussed,and proposals concerning the construction of risk disperse mechanism for mortgage of land management right were also made in this chapter.Chapter Six Conclusion suggested to construct the land right structure in the form of“separation of three rights”under the collective ownership of rural lands in China,and the mortgage system of management right to rural land with land contracted management right and land management right as mortgage object.Based on this,proposals for legislation and law revision.