A Study On The Mortgage Of Right To Rural Land Contractual Management

It is a new attempt for the mortgage of right to rural land contractual management to stimulate the function of rural land factors, increase the effectiveness of land, develop the rural economy, and it is also a major breakthrough to resolve farmers financing difficult problem. At this stage, however, it remains a large obstacle for the mortgage of right to rural land contractual management running under the legal framework. According to the current practical difficulties of the mortgage of right to rural land contractual management, this paper from the social and legal attribute of the right to rural land contractual management, through the duality analysis of the land contractual right and the land management right, try to solve them from the operating principles, the qualification of the parties to a mortgage, mortgage registration, the establishment of a mortgage contract, and the establishment of the relevant supporting system. Finally, we need to establish four kinds of mortgage mode by an autonomous mind for mortgagor, so that we could construct a set of effective and feasible system of the mortgage of right to rural land contractual management.Besides preface and epilogue, this article is divided into five parts,about 27 thousand words.The first part is the connotations and characteristics of right to rural land contractual management. The current law about right to rural land contractual management has two different gaining methods, and has different restrictions to each transfer modes. The right to rural land contractual management contracted in a family situation, its object is rural lands, and the purpose is agricultural production and operation, with identity and sociality and lack of independence, its political significance more than significance as a civil right.The second part is the operation mechanism of the mortgage of right to rural land contractual management. The right to rural land contractual management can be divided into land contracting right and land management right, the land management right can used to mortgage. The mortgage of right to rural land contractual management from prohibit in law to loose in policy, it can be seen that the exploration of the mortgage of right to rural land contractual management loan will be an indispensable key link in the new round reform of rural land, and the policy will tend to be more operability and effectiveness.The third part is the argument of feasibility and necessity of the mortgage of right to rural land contractual management. In jurisprudence including: deduction form formal rationality of law, the purpose of legislation of make the best use of everything about property law, the requirement to the equal right to development from rural residents should enjoy equal right to urban residents, the strong support from traditional financing of emphyteusis. Reality needs including: increase the effectiveness of land, scale operation of land moderately and financing of farmers.The fourth part is the realistic plight the mortgage of right to rural land contractual management faced. Firstly, the farmers’ enthusiasm to loan from financial institutions mortgaged in the right to rural land contractual management is not high, combined with the regional differences in land function, not every rural area is suitable for mortgage loan by the right to rural land contractual management. Secondly, the financial institutions driveled by interest, delayed in participate in the mortgage loan of right to rural land contractual management faced. Thirdly, unified registration system of the mortgage of right to rural land contractual management, imperfect trading system, backward rural financial system and distempered rural social security system are obstacles that limited the mortgage of right to rural land contractual management.The fifth part is the construction of the mortgage of right to rural land contractual management. Firstly, the construction of the mortgage of right to rural land contractual management should follow the purposes of not change the land application, not change the nature of the collective ownership of land, not damage the rights and interests of farmers and not destroy agricultural comprehensive production capacity. Secondly, the qualifications of mortgagor and the mortgagee need to be addressed. Thirdly, mortgage must register, register is the established requirement of mortgage, the establishment of the mortgage contract does not need to agree by the contract letting party, but should put on record to the contract letting party. Finally, in order to ensure the effective operation of right to rural land contractual management must improve the land value evaluation, strengthen the moderate supervision to guard against financial risks and improve the rural social security system, to provide alternative land mortgage model for the farmers who have loan demand.