Construction Of Mortgage System Of Land Contractual Management Right In China

Whether the contracted management of land may be mortgaged, the legislation in our country takes different approach to solve the problem. Considering the basic function of land and farmer’s survival, this mortgage is prohibited by law. As for the contract and management rights acquired through bidding, auction, open consultation, the legislation allows for the mortgage. In order to adapt to the development of rural economy and solving the problem of the reality of farmers, the theory of " division of three rights “explicitly put forwarded in the relevant policy documents of the CCP central committee staff office and General Office. This theory separates the contract rights and the management rights, and promoting land management right mortgage pilot safely in practice. Each of the pilot areas in response to national policy, combined with the actual situation, and explored their own system. Agricultural Bank of China first introduced the corresponding pilot scheme, and clearing the scope of mortgage which include the management rights of contracted rural lands. However, there is no clear law to confirm this policy.Actually, the situations are very confusion and the practice of all pilots is not identical. For the policy and practice pilot is not consistent with the current legislation, there is no clear answer so far.This article mainly studies the problem of the household contract land contract and management rights mortgage under the system of “division of three rights", combining with regional legislation and practice. The first part of the article studies the necessity of mortgage of land contract management right combined with the theory of usufruct, which through the analysis of existing legislation and practices around China; The second part mainly analyze the rationality of “ division of three rights”, and studies the powers and functions of theory, which provides the theoretical foundation for the construction of the system; The third part is legal analysis, this part proves the Mortgagor should not be restricted by the condition of non-agricultural income and the agreement of developer; The fourth part expounds the scope of mortgage is only the management right which has the right of disposition, rather than the contracting right and the crops. The fifth part combining the new implementation of the real estate registration ordinance, and analyzes the subject and content of the mortgage contract in detail, as well as probes the effective way of mortgage. We concluded that we should take the registration validity doctrine, and called for legislation to establish a unified real estate registration authority as soon as possible. The sixth part describes the implementation of the mortgage firstly, which including the right to the contracted management of land auction, selling, and setting up a comprehensive rural property right exchange, giving the mortgagor priority right of tenant, and referencing enforce management system, and then verifying the mortgagor shall be realize their rights through substitutiononce the mortgaged property be imposed during the implementation of the mortgage contract.