On The Construction Of Mortgage System Of Cultivated Land Contractual Management Right

Farmland is Bacchus who has multiple personalities. The mortgage of the right to the contracted management of land rationality, establishment, validity and achieve the program are wrestling between market and security, efficiency and fairness. We must balance efficiency and fairness in the design of agricultural land system, make an inventory of the function of the market elements of the agricultural land, and protect the rights of farmers to survive from infringement, the interests of pledgee. So we need to play the superiority of the mandatory management system, in order to force the realization of revenue protection. The dual logic starting point requires the construction of the system of the right to land contract and management, which needs the use of the concept of public private integration. "Land contractual management right mortgage regulations" draft is a kind of exploration and attempt of the future legal system construction."The lifting of the ban" can be described as having a solid theoretical and practical basis, is an actively respond to the market and practice. In the specific legal system construction, also need to pay attention to and maintain the safety and stability of land. The mortgage of arable land contract and management rights comes from the traditional real estate mortgage, it’s real estate usufruct mortgage. The mortgage shall include but not limited to the farmers, they shall have the right to decide on their own charge, and their right shall not be subject to the restrictions of the employer and their own income. To the right to the contracted management of land as collateral for farmers to provide long-term agricultural loans of financial institutions is currently mainly the mortgagee, consults the domestic and foreign present cases, in the future, the establishment of land bank and auxiliary supervision and insurance system. From the perspective of law, "three power division theory is untenable, creditor’s rights can not the property as collateral, so the mortgage of the right to the contracted management of land mortgaged property is property of the arable land contract and management rights, non operating rights, nor all the land contracting right of management. Because of this the mortgage of the right to the scope of validity is special and should not include crops, agricultural products and fruits, but can include land compensation and set up the easement right. Real right law of the People’s Republic of China recognized a general sense of the transfer of the mortgaged property, admit mortgage chase and potency and pay, but operational considerations based on the system in mind and reality, set to postpone the mortgagor shall not transfer, the right to the contracted management of subcontracting, swaps, then arrived to maintain the original mortgagee interests for the bottom line. Implementation of the statutory procedures and procedures to achieve the implementation of the program can improve the efficiency, but in the legal program, in order to maintain the balance of interests between the parties of the mortgage, we must firstly come into the "real right for security cases" program acquisition to get e enforcement basis.