A Study On The Mortgage System Of The Management Right Of Rural Contracted Land

After the third Plenary Session of the 18th CPC Central Committee, the central government takes the "Three Rights Separation" as a new measure to deepen the reform of the rural land and stabilizes farmer's contracting right and liberalizes the management right on the basis of the maintenance of the collective ownership of rural land. The central government also allows the management right of rural contracted land to be mortgaged to financial institutions. In March 2016, the people's Bank of Chinese, CBRC and CIRC jointly issued the"Interim Measures of the Pilot Program of the Mortgage of the Management Right of Rural Contracted Land", providing a formal and theoretical guidance for the pilot practice. However,there are still a lot of voices against this practice in the law field. Many scholars believe that the "Three Rights Separation" lacks sufficient legal theory. Moreover,the mortgage rules are not improved,which do not have a strong guidance to the practice. For this reason,this study will focus on the theoretical framework of the management right of rural contracted land through the "Three Rights Separation",summarize the current institution of the mortgage system of the management right of rural contracted land, analyze the problems and try to put forward some suggestions.This paper is divided into four parts. The first part analyzes the connotation, nature and content of the management right of rural contracted land. It separates the management right from the contractual and management right of land on the basis of the stability of the collective ownership of rural land and land contractual relationship, as a new type of right to be owned by the actual land operators. This paper supports that this right is a kind of property right, which includes the right to use, the right to dispose freely, the right of return and the right of inheritance.The second part discusses the current institution of the management right of contracted land. Comparing the current central policy with the local normative documents, this part summarizes related rules set by them, including the subject and object of the mortgage and the establishment and realization of the mortgage.The third part analyzes the problems of the mortgage system of the management right of rural contracted land, mainly divided into the problems of the mortgage establishment and realization system and some other issues. The problems of the mortgage establishment system include: the land confirmation and registration system is not improved, the scope of the mortgaged land is not clear,whether the establishment of the mortgage needs approval,the evaluation system of the management right is not improved. The problems of the mortgage realization system include: the ways of the realization are not clear, the effect of the mortgage is not clear and the priority of the members of the collective economic organization is not clear. Other issues of the mortgage system include: the transfer market of rural land is immature, the risk prevention system is not improved.The fourth part discusses the improvement of the mortgage system of the management right of rural contracted land. As for the mortgage establishment, we should improve the relevant registration system, clear the scope of the mortgaged land, cancel the contractor's right of approval, improve the evaluation system of the management right. As for the mortgage realization, we should clear the ways of the realization, clear the effect of the mortgage, do not give priority to the members of the collective economic organizations.Finally, as for other issues, we should improve the rural land transfer system, strengthen agricultural insurance and interior risk control system.