| Whether the right of land rental can be mortgaged and how to mortgage it are recently concerned by many scholar and specialist. With the interest of these questions the author begins his writing journey and makes some research on them. After made survey at Wenjiang (Chengdu province) and some districts in Shanxi, the author realized that origin purpose of the government's concern is good. Mortgaging their rights of land rental may deteriorate the peasants'standard of living. But after analyzing the research the author found there is no conflict between them. In practice we can both protect peasants'land to avoid the risk of affecting there standard living and give them financial aids at the same time.The academic holds an entirely different view on the contracted management mortgage of land which forms two academic camps.one is supportting the contracted management of land mortgage,the other is against the contracted management of land mortgage.the scholars who support the mortgage of the contracted management of land based mainly on mortgage can promote the rural economic development, improving farmers' quality of life.And also based on that the contracted management mortgage of land is one of the real right in our civil law system. As the real land contracting operator has a right to his own rights. So some scholars think that only positive allowing the contracted management mortgage of land, the mortgaged civil basic rights can be ensured to be realized.the scholars who are against the contracted management of land mortgage have his concern and reason.the scholars who are on the land security side believe that under the background that the current Chinese rural social security system is not sound, implementing the mortgage may lead to the lose of land to the land farmers. So based on rural contracted land of the minimum life guarantee, basic old-age security and psychological security and other basic security features will be lost due to the positive role. And the scholars who hold the idea of protection of arable land mainly from the national economy development and the cultivated land food security Angle against the importance of the contracted management of land the implementation of the mortgage.This article analyzes the situation of land rental mortgage in Wenjiang district (Chengdu), which is the overall urban and rural development pilot. It shows the strengths and demerits of the land rental mortgage. In one hand it give the financing aids to the peasants and stabilize the financial market, but in the other hand the defective of legal system and the lack of social security system limit the development of the land rental mortgage and become of an obstacle of it.It is necessary to make a detailed and targeted analysis on the factors of prevention of the land mortgage. Only find these obstacles and through the concrete system design and implementation can boost the mortgage of the contracted management on an orderly operation.Lacking of the mature market of the contracted management of land mortgage is the important factor for not realizing the mortgage. As the market is not mature which will make the interests and profits are not effectively guarantee for the market participants.And this also can affect the enthusiasm of effective attempt for the market participants.At present the circulation of rural land market is lacking of professional land evaluation institutions, The lack of such institutions will make the value to real, objective and effective response for contracted management of land through the way of the market. So on the one hand this will improve the cost of bank for the mortgage lending to the contracted management of land. On the other hand this mortgage process will underestimate the value in the mortgage of the contracted management of land. And the interests of peasants may be violated. At present,there is no perfect restriction mechanism in the circulation market of the contracted management of land. it is very easy to change the purposes of using the mortgage contract land. This used in agriculture land will be used for commercial development of urban citizens and the villagers live.Among factors that retard the development of land rental mortgage, the conflict of laws and regulations was the major concern of jurisprudents. Nowadays the land rental mortgage has conflicts with property law, security law and law on land contract in rural areas. For example the law stipulate that the right of land rental can be transferred but at the same time it stipulate that it could not be mortgaged which seems to be unreasonable. As consequence we must adjust and improve those property law, security law and law on land contract in rural areas to enforce agricultural scale operation.In the current rural land mortgage contracting pilot, there are many local governments and national ministries have been given positive legislative response to the phenomenon in reality. In addition to existing "property law" 61,128 and "Rural Land Contract Law " 32,41 which give the rural land a positive affirmation, in 2005 the Ministry of Agriculture Decree 47, the 2008 Third Plenary Session of the CPC resolution and the 2009 of the People's Bank and the China Banking Regulatory Commission jointly issued a notice on strengthening the credit structure, in 2010 People's Bank of China Banking Regulatory Commission Securities Regulatory Commission and China Insurance Regulatory Commission jointly issued on the overall rural way of innovative financial products and services guidance, and 2009 of the State Council on efforts to increase urban and rural development based on agriculture and rural development and further consolidate the number of observations and in 2010 in Chengdu of rural land contracting right and Management (tentative), and other policies and laws and regulations have on rural land contracting Secured the right to operate and make a positive contribution.Support in the context of laws and regulations, many places began the mortgage of the right to land contractual management pilot. Although there are no success stories of Contractual Right Mortgage in Chengdu city, but in sharp contrast to this, there are many parts of the pilot has achieved some success and significant results. cities like Chengdu and Wuhan has some cases. Success with the above guidelines do not represent the right to land contractual management will be more smooth development and the current mortgage contract management right does not exist in any of the problems. As mentioned above, do not actively participate in the main markets is the most easy to find the problem, The main market is not taken for granted and to act fully with interests, on contrary, their actions are driven by the interests of the guidelines, Therefore, analysis can be drawn through the ownership of their own lead unclear is the most fundamental reason for not actively. Coase Theorem tells us that as long as the property is clear, and transaction costs under the premise of zero or very small, then both of them at the beginning of the property which a given subject, and ultimately can achieve a Pareto optimal allocation of resources, but at present, the design of China's right to land contractual management ownership just don't get the precious land resources in rural areas an in favorable for the protection and efficient use.Amend the relevant legal system is not enough to carry the right of land rental mortgage through. To implement a new system also need other additional relevant system's support. As consequence to establish a rational land rental mortgage market would be very important under such circumstance, meantime it also need to establish an objective and neutral centre for valuing the land, a registration system, a regulation system for management the use of the land, a regulation to let the mortgagor have the priority right to buy the land back, a risk assessment system and rural social security system.In the Construction of the system and innovation should be noted that the interface between the system and the degree of actual needs and the design system can be realized, Because a good legal system run its first step is to work out just as the Great Wall, and the effective implementation of the legal system is the system is implemented and the fundamental guarantee for implementation of the system. Therefore, the design of the system should be more focus on the implementation of specific measures for the protection of the system and violations of this system should be punished. Things are interrelated; the right to land contractual management system implementation is in the secure of legal system and related support systems. Therefore, to ensure that legislation in line with actual needs of the premise, to make the matching system is related to mutual support, mutual accommodation and mutual coordination, because Contradictory system design will give the right to land contractual management new resistance and obstacles. |
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