Study On Mortgage Of Land Management Rights From "the Perspective Of Three Rights Division"

China's agriculture has begun to enter a period of transition from traditional agriculture to modern agriculture,along with the characteristics of high investment and high output.Financing difficulty has become a big restrict in the development of modern agriculture.For agricultural producers,land is important capital they have,but our laws prohibits the land management right contracted by family to have a mortgage financing,which makes the capital effect of land cannot be achieved.To solve this problem,the central proposed the Separation of three rights in rural land ownership,contract right and management right,and to allow a new round of land reform followed.All over the country have gone the different forms of exploration,and the current academic circles also debate a lot about this practice.I will have a law study on this issue.The article is divided into four parts altogether:The introduction focuses on the relevant policy documents of the central government on the "Three Rights Separation" and the mortgage of land management rights in recent years.From these documents,we can see the direction and outline of the rural land reform in our country.Putting the research of land management right mortgage in the context of the three rights division is also in line with the new trend.The first part is the legal interpretation of the "Three Rights Separation" and the mortgage of land management rights.After the introduction of the central policy,many scholars have conducted research and published views.I make a summary on the current research on the "three rights division" and land management right,and summarize the law research achievements and the different viewpoints.At the same time,pointing out the shortcomings of existing studies.We need the support of the theory in the reform,although there is still a lot of controversy on land management rights.I would like to support the legitimacy of three rights division and land management right mortgage,and then have a legal argumentation.The second part mainly demonstrates the feasibility of the mortgage of the land management right under the background of the three rights division.From our law point of view,although there is a prohibition,the property law has reserved the space for the land management right mortgage;From the perspective of practice across the country,the mortgage of land management rights have made certain effect,and also some modes came into being;As the increasing practice of land management right mortgage,the court in judge of such disputes can not deny its effectiveness,otherwise it will be difficult to guarantee the right of many parties.Therefore,the court in the judicial practice has taken a more liberal attitude on the mortgage of land management rights.Finally,I offer some advices to the improvement of legal regulation of land management mortgage.The third part,combined with the theory of the three rights separation,expounds the legal structure of the mortgage of land management right.Under the theory of three rights separation,the subject in relation of the land management right mortgage is the one who has the land management rights.From the point of the different ways to obtain land management,it can be divided into the original management right owner and following land management right owner;the subject who have the right of mortgage are banks and other financial institutions.The natural person and the common enterprise legal person are excluded.The object is the mortgage of the land management right after the separation of the three rights,and the effect of the mortgage is not equal to the crops on the ground unless the parties agree.The establishment of the mortgage right of land management takes the registration validity doctrine.The main way to realize the right to land management is the way of negotiation,including:the discount of the agreement(not applicable to the bank),the auction,the sale,and the mandatory way,including forced auction,sale,and mandatory management.