Study Of How To Mortgage The Arable Land Usufruct

The topic of how to mortgage the arable land usufruct is one of long-term focal point in theoretical circles in China.This topic is not only about legal justification,but also is a political issue which has closely linked with the development of rural society and affected the stability of rural society in China.Whether it is permitted to mortgaged or not,it will influence the balance between the market allocation function and social security function of land resources in rural and affect the use efficiency and the fair distribution of land resources.Since the promulgation of the "Guarantee Law of the People's Republic of China" in 1995,the policy makers have always believed that the arable land usufruct has played an important substitute role for China's yetimperfect rural social security system,and it is used as the main reason for prohibiting mortgages of arable land usufruct.With the changes in rural economic conditions,this inherent concept is being challenged and questioned.Research on the justification of the mortgage of the arable land usufruct is the starting point for the following related research.In the past 20 years,scholars in China have conducted extensive discussions on this topic from two aspects: the legal legitimacy and the practical environment.Reviewing the various viewpoints of the academic community,we can see that the mortgage of the arable land usufruct meets legal justification.The main reason for the ban is that,under the background of our country's yet-imperfect rural social security system,the arable land usufruct actually bears the social burden--safeguarding alternative function.In fact,this is the main practical constraint factor for the mortgage ban on the arable land usufruct in China.However,with the development of rural society,the pattern of “supporting farmers with land” has reached a bottleneck.The social security function of the arable land usufruct is gradually weakening.In addition,the need for the development of agricultural modernization,and the practical environmental constraints on the mortgage of the arable land usufruct have been gradually loosened,allowing mortgages of arable land usufruct will in line with China's future agricultural production development requirements.With the opening of pilot work on the mortgage of arable land usufruct,how to mortgage the arable land usufruct has become a realistic issue that needs to be answered.The clear definition of the mortgage subject,the definition of the scope of guaranties,the composition of the effective element of the mortgage right,and the way in which the mortgage right is realized need to be uniformly and explicitly responded to by legislation.This also requires guidance from relevant theoretical studies.The mortgagor of arable land usufruct should have the same identity as the arable land usufruct holder.China's legislation explicitly uses “peasant households” as the right holder of the arable land usufruct,but the nature of the peasant households and their means of generation are unclear,which has directly affected the validity of the expression of mortgages.In fact,farmers have long been the basic unit of agricultural production in China,and they are also the basic unit of rural land system design in China.To maintain the stability of China's rural land system,the legal status of "peasant households" should not be easily repealed.The only way to solve this problem is to redefine the internal relationship between rural family members,and to re-establish the meaning-generating mechanism of " peasant households".As China strictly restricts the mortgage of arable land usufruct,the range of collaterals is not clearly stipulated by law,and relevant theoretical research is not sufficient.In the practice of local pilots,the regulations on the scope of collaterals vary from place to place.whether or not the objects,such as the equity proceeds of crops,agricultural facilities on the ground,the right fruits and the collaterals of subrogation,can be affected by the mortgage rights are inconclusive.With reference to the relevant legislation of various countries and Taiwan regions,combined with the consideration of promoting social and economic efficiency and achieving the best use,the equity proceeds of crops,agricultural facilities on the ground,the right fruits and the collaterals of subrogation should be included in the scope of the collaterals.China's law still retains the style of the planned economy era in the property rights disposal of arable land usufruct.The concrete manifestations are in two aspects.On the one hand,under the current legislation,the property rights disposal of the arable land usufruct need to approved by the village committee.This not only affects the market circulation of the arable land usufruct,but also contradicts the absolute nature of the property rights.On the other hand,the disposition behavior of rural land rights in China generally applies registration antagonism which conflicts with the registration validity applying in China's state-owned immovable property rights.That is not conducive to the marketization of rural land rights.To trace back the evolution of relevant decisionmaking ideas in China and combine the current logic of promoting the development of rural land rights marketization,the mortgagor's wishes should be fully respected in the mortgage of arable land usufruct,and the precondition of “approved by the village committee” should stop applying.At the same time,in the context of perfecting the registration of rural land rights,the registration of real estate as the effective element of the mortgage rights of arable land usufruct.The arable land usufruct is poorly circulated.If the general way of realization of mortgage rights is not only unfavorable to protect the interests of the mortgagee,it may also cause farmers to worry about land loss risk.Because of this,how to innovate the way of realization of mortgage rights has become the key to solve this problem.For this reason,the introduction of a compulsory management system for collateral has become a new direction for academic research.On the one hand,the system guarantees the mortgagee 's rights with compulsory management income,and on the other hand,it can avoid the landlord in the risk of lossing land.