The Study On The Right To Mortgage On The Collective Construction Land In China Rural Areas

The mortgage on the use of rural collective construction land has become a booming phenomenon in practice in recent years. Even though there are many limitations and blocks on the legislation level, the phenomenon of the mortgage on the use of rural collective construction land has already been prevalent, and a number of local legislation and regulations emerge as the times require. Meanwhile, the related problems and disputes have become more and more, and the development in reality requires the correct guidance in theory and the legitimate regulation in legislation. According to the development in reality, this article tries to propose some suggestions about how to perfect the legal provisions by the research methods of historical analysis, positive analysis, and comparative analysis.The article introduces the historical development and the current situation of the mortgage system of the use of rural collective construction land at first, demonstrates that the limitation on this system is excessive and undue, which makes the mortgage system produce many drawbacks. The drawbacks mainly includes the imperfection of the legal provisions making the effectiveness of the system been impaired, the limitation of the collateral cannot adapt to the development of collective economy, the virtual subject of collective ownership destroys the financing function of the mortgage on the use of rural collective construction land, and the incompletion of the land registration system hinders the efficiency of the mortgage on the use of rural collective construction land, and so on. Then the article analyses the reason of these drawbacks from the perspective of historical development, the legislation policy, the current law system background and the government regulation, points out that the root cause lies in the long-term dual structure in Chinese urban and rural economy and the resulted priority for the development of the city in the course of industrialization. Besides, the interest competition among the related subject, and the rights of rural collective construction land users and the farmers are not protected reasonably, also inhibit the establishment of the mortgage system of the rural collective construction land. The excessive limitation on the mortgage system of the rural collective construction land hinders our economic and culture development of agriculture, rural area and farmers, also influences the economic development of the whole country.This article combines the related law, the practice in the pilot area with the new development of the policy, tries to construct a specific mortgage system of the use of rural collective construction land. At the same time, it analyses several key problems deeply, which include the registration of the use of rural collective construction land, the evaluation of the mortgaged land, how to dissolve the risks in realizing the mortgage on the use of rural collective construction land, and the anticipation of a all-around legal system reformation.