Research On The Establishment Of The Mortgage System Of Household Contractual Management Right

At the present situation, the decentralized and fragmented land management limits the development of agriculture which goes against the policy of moderate scale management of agriculture. The status quo of the law which prohibits the mortgage of the household contract management has brought difficulties in the financing of agriculture for moderate scale operation. To allow the mortgage of the household contract management can provide a new path for the transfer of land management rights and farmland financing. From the policy level, the State Council proposed to give farmers the right to mortgage to the contracted land, allowing flexibility of management of the land, allowing the right to operate the contracted land to finance from financial institutions. The ban on the mortgage right to the household contracted management of land has been lifted, and local places has carried on the beneficial exploration to the mortgage way, the guarantee way, the mortgage right realization way and so on which has provided the sufficient experience for the construction of the system of the mortgage right to the household contracted management of land. In order to provide the legal basis for the mortgage right to the household contracted management of land, the corresponding system design should be carried out as soon as possible.This paper is divided into six parts: The first part discuses the current policy on the mortgage right to the household contracted management of land through the comparison with the current mortgage law associated with right to the household contracted management of land, and based on the discussion, it concludes that the current policy level has fully liberalized the mortgage right to the household contracted management of land. At the same time, from the policy level, this paper demonstrates the legitimacy of the mortgage right to the household contracted management of land. This paper points out the social security function of the farmland is weakened by the continuous improvement of the existing rural social security policy. The theory of separation of the-three-right provides the policy and theoretical basis for the mortgage right to the household contracted management of land in which the risk of collateralization of the mortgage right to the household contracted management of land can be controlled through system design. In the second part, the patterns of the mortgage right to the household contracted management of land in pilot area are introduced and evaluated and the author points out the problems existing in the current pilot project on the basis of the common features of the pilot areas. The third part puts forward the object system of the mortgage right to the household contracted management of land and this paper points out that there are three views on the mortgage object which scholars have given,namely, the right to dispose; mortgage right to land contract income; the mortgage right to the household contracted management of land. The first view is not consistent with the existing legal provisions; the second view is difficult to self-discipline in theory; the third point of view has a theoretical and realistic legitimacy and the mortgage object should choose it. The fourth discuses the construction of subject system of the mortgage right to the household contracted management of land, and this paper points out that the mortgagor should distinguish the duality between the owner and the assignee of the mortgage right to the household contracted management of land. The specific type includes the farmer and new agricultural business entities. The mortgagor's qualification is not subject to the restriction of"stable non-agricultural occupation or stable income source" without the consent of the party; Mortgagee can be financial institutions such as banks and can set up land banks and new rural cooperative financial organizations. The fifth part proposes the construction of the system of the mortgage right to the household contracted management of land and puts forward to the realization way of the mortgage right to the household contracted management of land. In addition to the auction, sale methods, the implementation of the way should also set up enforcement of land benefit and mandatory management mode as the special system of realization. We should protect the farmers 'right of surviving after the realization of mortgage by limiting the quota of agricultural land mortgage, the implementation of exemption and agricultural land loss insurance. The risk of mortgage can be prevented by the establishment of agricultural credit guarantee system, agricultural land use control,strengthening agricultural insurance and the establishment of risk compensation mechanism. The last part put forward the corresponding measures of the mortgage right to the household contracted management of land which includes the implementation of the right registration, the establishment of rural property rights trading platform, the establishment of evaluation mechanism of right to the household contracted management of land and improvement of the rural social security system.