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

The right of rural land contractual management is a special elements of production, has been became the farmer finally living security. From this point of view, formerly the law has a variety of restrictions on the transfer of land contractual management right, in particular the prohibition of the mortgage of land contractual management right by family contract. However, with the development of rural economy,traditional agricultural has not become the main part of family income, land security function is weakening. In2008,the central government proposes that establish and perfect the contracted land circulation market, develop various forms of moderate scale of management. In2013, the state council development research center opened "383" reform plan that proposed for the third plenary session of18, point out that giving farmers the mortgage rights in based on the existing land ownership. These policy documents show the land contractual management is the tend of popularity. While the state approved the Ningxia, Shangdong and Sichuan to set up the experiment area of the land of transfer and circulation, allow the combination of theory and practice, providing the practice of exploration for the mortgage of land contract management system. In this experiment, tradition and modern collision,the limitations of law and demand of reality collision, embodies in some problems of practice of the system of rural land contractual management. Academia should face up to those problems, put forward feasible path for the mortgage of the right to land contractual management, promote the sustainable development of rural economy,improve the income of farmer.The full paper is divided into five parts, the author using the idea of law.combining with the experience of some experiment areas, respectively discusses the main provisions of subject, object of the mortgage of the contracted management land right, and the setting, the implementation of the mortgage,the construction of the related system, and some author’s suggestions to solve this problems. Give full play to the role of rural land contract management rights mortgage system.The first part analyzes the existing legal provisions of rural contract management right mortgagor system, think the problem is that legislation is not uniform, no longer adapt to new situations, as farmers of rural land contract management right mortgagor has shortage. Our proposal for the "Land Management Law" and "Rural Land Contracting Law" to make changes to be agreement with the "Civil Law",to establish the main essence of rural land contract management rights for the citizens of the mortgagor or collective and reduce the restrictions of rural land contract management rights.The second part analyzes the rural land contracting right mortgage object system existing legal provisions that the problem is that legislation is inconsistent, contradictory to the logic, the mortgagee object is narrow. We proposed change the land contractual management rights of rural object mortgage law to make it consistent with the provisions. And extended range object mortgaged land management rights to operate the mortgage allows the family acquired the land contract.The third part analyzes the legislative provisions of the contract of land contract management rights of rural mortgage and registration situation,shows there is inappropriate to entry registration doctrine consistently become effective of land Contract Management Right Mortgage Contract. The registration authorities and mortgage authority dispersed,cross-functional dispersion and another defect registration system was not perfected. Recommends that national legislation,the right to land contractual management contact effective way according to the transferee of the mortgage is the same whether or not the members of the collective economic organizations, were taken the registration effectiveness and registration antagonism respectively. And sorting and merging the unified real estate registration duties and agencies,making the issuing authority of land contract and management rights as a temporary registration authority,stipulating detailed the flaws registration act of registration authority,establishing the relief system of land contract and management rightsThe next part analyzes the legislative right to land contractual management of rural mortgage realization and practice situation, the problem lies in the lack of existing laws specifically for the mortgagee the right to land contractual management regulations implemented in practice, the practice does not take into account the interests and rights of the parties to achieve the efficiency of the mortgage. Proposed to amend the existing laws, to make special provisions for the realization of the right to land contractual management of mortgage,take different implementations depending on the circumstances specified mortgagee the right to land contractual management. As the same time,the transferee should be subjected to a reasonable limit, and prescribed the right mortgage term.The last but not the least,this paper presents the current rural land contracting right mortgage system problem lies in the lack of appropriate support mechanisms. The author suggested to establish the social security system in rural areas and agricultural insurance mechanism to free the farmers from the land protection while reduce the risks associated with the mortgagee. Establish land contract management rights transfer market, make the transfer of land use right mortgage can improve efficiency, open and fair run. Establish a new financial system of rural land to achieve funding of land, so that the farmers of land into real property by their own process.