Mortgage of land management right has enormous potential and market in helping farmers and new agricultural subjects to finance large-scale operation and activating the economic function of rural land.It is a concrete measure to implement the central policy of"loosening land management right".On the premise of keeping the contractual relationship of rural land unchanged,the mortgage of land management right conforms well to the requirements of the new changes in the current situation of rural land use and the development trend of agricultural scale and modernization,and its legalization has also been put on the agenda.The mortgage of land management right before the second amendment of the Rural Land Contract Law undoubtedly broke through the stipulation that the law prohibited the mortgage of collectively owned land use right at that time.Therefore,the implementation of mortgage loan of land management right in pilot areas must be authorized accordingly.After the amendment of the Rural Land Contracting Law,the right of land management can be obtained directly by contracting rural land by other means.The old law can be extended to establish mortgage.However,the nature of the right of land management separated from the right of land contracting and management obtained by household contracting is not clear,nor can it be financed by mortgage.Through the method of literature research,we can see that different scholars have great differences on whether and how to establish the mortgage system of land management right obtained by household contract.We must first clarify the legal attributes of the right to land management,and then analyze the feasibility of establishing the mortgage system of the right to land management.Then,combining with the practice of the mortgage loan of the right to land management in the pilot areas,we point out the main obstacles to the establishment of the mortgage system of the right to land management.Finally,the paper puts forward some countermeasures to promote the establishment of the mortgage system of land management right.Therefore,this paper is mainly divided into the following parts:The first part,through the analysis of the background,content and the influence of the legal attributes of land management right on mortgage and mortgage ability under different theories,holds that the legal attributes of land management right should be usufructuary right without any social security function,so as to ensure the free circulation of land management right and give full play to the financing guarantee function of land management right.In the second part,through comparative method,it is clear that the right to land management should focus more on economic functions rather than social functions.It is necessary to liberalize the free circulation of the right to land management and mortgage it on the basis of the promotion of realistic needs and rich pilot experience.After the law has made it clear that the right to land management can be guaranteed by financing,we should further promote the establishment of the right to land management as a mortgage of usufruct rather than as a pledge of creditor’s rights.In the third part,on the basis of summarizing the problems exposed in the pilot work of land management right mortgage,the author points out that there are still some obstacles in the establishment of the specific system of land management right mortgage,such as the complexity of mortgage,the ambiguity of mortgage subject,the controversial scope of mortgage effectiveness,the cumbersome mortgage modes and procedures,and the difficulty in the realization of mortgage right.The fourth part,aiming at the above problems,puts forward the concrete countermeasures of establishing the mortgage system of land management right from the following aspects:clarifying the source of mortgage,clarifying the mortgagor and mortgagee,clarifying the scope of mortgage effect,simplifying the mortgage mode and procedure,establishing and perfecting the circulation market of land management right to solve the difficulty of realizing mortgage right. |