Research On The Mortgage Of The Right Of Rural Land Contracted-management

The mortgage of the right of rural land contracted-management is a big legal problem, but also an economic and social problem.It influences the vital interests of farmers and stability of the state and social .It also influences rural economic development.Although the mortgage of the right of rural land contracted-management is not allowed according to law, the social security features of land is gradually weakened , and the financing needs of farmers is enhanced with the development of society.To conform to reality, our legislation is necessary to allow the land contracted mortgage.We should design the relevant mortgage system and improve the relevant system.This paper is divided into three parts.In the first part,the main problems of the right of rural land contracted-management are discussed.Firstly, there is a congenital dcficicncy in the effect of real right in the land contractual management.For example,the disposal of the right of rural land contracted-management is highly restricted,the function of social security of the right of rural land contracted-management, administrative intervention of the right of rural land contracted-management.Secondly,we introduce the legislative provisions of the mortgage of the right of rural land contracted-management and the existent problems.According to law, the managerial right of plow, private plot and private hill through household contracts couldn't be mortgaged; but it allow the transfer of land through household contracts So it seems that the regulation is contradicted. In order to solve the problem,we need to consider its special nature and further analyse the mortgage of the right of rural land contracted-management is workable.In the second part, the pledge's need and feasibility of the farmland contracted rights are discussed.Firstly,the "negating view" about the pledge of the contracted management rights of farmland are refuted:for example,the doctrine of the function of social security of land,the doctrine of the avoidance of collapsed economic collectives,the doctrine of protection of land and avoidance of land annexation. Then we discuss the pledge's need of the farmland contracted rights from different angles, for exemple, stimulate finacing, agricultural modernization and work force convertion . Then we discuss the pledge's feasibility of the farmland contracted rights from different angles, for exemple, theoretical principle, policy basis ,foundamentals of law ,practical basis and the restrictive condition and its solution .Then it is pointed out that it should be legislatively clear that the contracted management rights of farmland can be pledged. The conclusion of this chapter serves as an essential logic prerequisite to the following chapter, which are about the research of system designs.In the third part, suggestions have been advanced over perfecting the mortgage of rural managerial of contracted land .Firstly,we discuss the special regulations of the mortgage of rural managerial of contracted land.We mainly coordinate the interests of the state, the collective, the mortgagor and mortgagee.In order to protect the interest of the state,we need to ensure the agricultural purposes of contracted land and ensure the transferee shall have the ability of agriculture .In order to protect the interest of the collective, the collective economic organizations shall be notified about the land contracted mortgage .Meantime,with the implementation of hypothec,the members of the collective economic organizations should have the priority to obtain the contracted land .In order to protect the interests of the mortgagor,we need to endow the mortgagor with real right for usufruct which is independent.We could evaluate the mortgaged property reasonably and so on.In order to protect the interests of the mortgagee,we should perfect the levy,withdraw,adjustment and inheritance of the contracted land.Secondly, the building of supporting systems for the pledge of the contracted management rights of farmland is studied. Four major issues are analyzed, including the perfection of rural social security systems, the establish of risk avoidance of the agriculture, the development of the market for the circulation of the contracted management rights and intermediary agent and the establish of new rural financial collateral system.This is the focus and the core chapter of the text, which based on the previous two chapters.