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Difficulties And Countermeasures In Realizing Mortgage Rights In Land Management Right Mortgage

Posted on:2020-02-25Degree:MasterType:Thesis
Country:ChinaCandidate:Z Y NieFull Text:PDF
GTID:2416330575465162Subject:Law
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Mortgage of land management rights is a major innovation in the reform of rural land transfer system in China.Under the framework of "three powers separation",how to guarantee the realization of mortgage rights in land management rights mortgage has important practical significance for the smooth operation of China's land management right mortgage system.Because the land management right is a special kind of collateral,there are three obvious particularities in the realization of the mortgage right in the land management right mortgage.First of all,the realization of the mortgage right of land management rights actually involves the coordination of the interests of the mortgage entity,the rural collective economic organization,the contractor and the transferee.In the end,there are three kinds of rights on the land.Secondly,the realization of the mortgage right of land management rights requires the intervention of the state public power,and cannot be adjusted simply through the market mechanism.Third,the realization of the mortgage right of the land management right must take into account the agricultural development and have obvious requirements of "purpose restrictions".Since there is no special legal provision for the realization of the mortgage right in the mortgage of land management rights,most of the practice is based on the relevant provisions of the Property Law and the Guarantee Law and the policy provisions for the pilot of the land management rights mortgage.In the pilot process of land management rights mortgage,local governments have continuously innovated the model of land management rights mortgage,and have achieved very positive pilot effects,and accumulated rich experience for the universal implementation of the land management rights mortgage system in China.However,in the pilot process of mortgage of land management rights,some real dilemmas that need to be solved are also exposed,mainly in the following aspects.First,the ways of realizing mortgage rights of land management rights is relatively simple.The financial institutions that are the main mortgagee at this stage can only use the auction and the sale to realizing their mortgage,but these two methods are based on the special mortgage target of land management rights,so they have their own outstanding defects.In addition,the four new attempts,such as orderly settlement,agreement transfer,and trading platform listing and re?transfer did not play the expected role.Secondly,the realization of the mortgage right of land management rights is difficult to handle the collateral.At present,the degree of marketization of China's agriculture is not high,and there is a lack of a sound agricultural land financial trading market.The above situation has brought great difficulties for the mortgagee to dispose of the collateral.Third,there is a shortage of inflows,which seriously affects the continuous operation of the land management rights mortgage system.Fourth,some of the land management rights that are allowed to be mortgaged have incomplete powers.In other words,the collateral exists some problems,which are extremely unfavorable for the realization of the mortgage rights.Finally,the scope of the effectiveness of the mortgage right of land management rights is not clear,so it will easily lead to disputes in practice,which in turn will have an impact on the realization of mortgage rights.The root cause of the above dilemma is because of the lag of the law,the imbalance of the protection of related subjects' rights and interests in the mortgage of land management rights,and the imperfection of the external supporting system.In order to solve the real dilemma of realizing mortgage rights in the mortgage of land management rights as soon as possible,the following countermeasures should be taken actively.First of all,based on the particularity of the mortgage of land management rights,the rules for realizing the mortgage of land management should be improved.For the single realization of the mortgage and the difficulty of handling the mortgage,the mandatory management system,the exception applicable custodial contract,and the flexible application of the subrogation can be introduced.Regarding the issue of the validity of the mortgage,it should be clear that the scope of its effectiveness differs depending on the circumstances.Secondly,improve the incentive mechanism of the inflow party and adopt diversified measures to encourage the enthusiasm of the potential inflow parties.The main measures include:optimizing the re-flow procedure;clarifying the inheritance rights of the inflowing party's heirs to the land management rights;and improving the land acquisition compensation system and optimizing the agricultural subsidy policy to protect the rights of the inflowing party.Finally,we must improve the supporting system of land management rights from four aspects:cultivating agricultural professional managers,improving the registration system for land management rights,establishing various forms of circulation platforms,and cultivating third-party professional land management rights appraisal institutions to lay the foundation for the realization of the mortgage right of land management rights.
Keywords/Search Tags:separation of powers, land management rights, land management rights mortgage, implementation of mortgage rights
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