Research On The Realization Of Mortgage Right About Rural Land Management Right

Mortgages secured on rural land management right,though originally prohibited by law,has been developing from local practice and attracted the government's attention since 2014.This new form of mortgage has become one of the core points in the current round of rural land reform.In August 2015,the State Council published Guiding Opinions of the State Council on Implementing the Pilot Programs of Loans with Mortgage of the Right to Contractual Operation of Rural Land and Farmers' Housing Property Rights,and started national trials of mortgage business based on rural land management right under the guidance of the theory about ‘three-right'separation of rural land.The legalization of mortgages of rural land management right is important not only for rural land market and the growth of rural finance,but also for the future development of the modern Chinese agriculture.However,the program in many local regions suffers from the difficulty in the realization of hypothec,which obviously lowers the relevant parties' motivation to participate in the reform,and might even bring about stagnation or even failure of the reform.Therefore,it is necessary to evaluate the situation of the current land right reform and the realistic demand on realizing the hypothec of rural land management right mortgages.Excluding the Introduce and the Conclusion,this paper can be divided into the following four parts:The first part: The legal analysis of mortgages secured on rural land management right.This part focuses on basic concepts and lays the foundation for future analysis.First,this part defines the concept of rural land management right and demonstrates the obligatory nature of rural land management right.Second,this part proves that mortgages secured on rural land management right are a type security backed by obligatory right.By analyzing relevant laws,this part further reveals that the current Chinese law accepts mortgages secured on rural land management right as a type security backed by obligatory right.The second part: The explanation of the system about realizing hypothec of rural land management right mortgages.This part analyzes the system from the angles of both the inner value and the external form.The former reveals the conflict anddilemma of the interests and values behind the scheme.The latter annotates it in the aspects of legislation and practice.On the one hand,the paper,through researching current law,discusses the relevant mortgage rules on ways to realize mortgage value,remedy channels,restrictions of vendee,and required procedures etc.On the other hand,the paper also contains the regional governments' exploration and practice related to rural land management right mortgages.The third part: The institutional predicament of realizing hypothec of rural land management right mortgages.Firstly,this part illustrates the legal risk in the exploration process in some pilot areas.Secondly,this part,through examining the current relief channels of realizing the mortgage right,reveals that arbitral remedy is insufficient and that the procedure of realizing collateral rights is often ignored.Moreover,this part analyzes the obstacles formed by the lack of supporting system of rural land management right mortgages from the perspectives of rural land trading market,valuation mechanism of rural land management right,and the instrument of land purchase and storage.Lastly,this part argues that the pure obligatory right structure of the rural land management right has made the purchasers less willing to anticipate in the trading of the rural land management right and hindered the successful realization of its value.The fourth part: The recommendations for promoting the realization of the hypothec of rural land management right mortgages.First of all,considering the improvement of the collateral value and the successful realization of the mortgage right,this part puts forward a reform program to add some powers and functions of real right to rural land management right,and analyzes the specific right structure of the prospected rural land management right.Secondly,by reviewing the existing laws and practice,this paper suggests loosening the relevant restriction on the transfer of the rural land management right in connection with the realization of the mortgage right.Finally,this part gives some corresponding solutions to the existing problems of the legal remedies and the supporting systems related to rural land management right mortgages.