Study On The Mortgage System Of Land Management Rights Under The "Rural Land Devision"

The development of China's agriculture and the secondary and tertiary industries has led to the continuous transfer of rural labor to the secondary and tertiary industries.The number of farmers engaged in small-scale cultivation of traditional households has become less and less,and the increase in demand for agricultural land circulation has promoted agriculture with significant benefits.Scale development.However,because the land contractual management right carries a certain social security function,the 1995 "Guarantee Law",the "Rural Land Contract Law" in 2003 and the "Property Law" in 2007 imposed more restrictions on the transfer of land contractual management rights and prohibited.Mortgage has seriously affected the value of the property rights of land contractual management rights,and the development of agriculture has also stalled due to the narrowness of financing channels.In this regard,in the early 1990s,the economics circles put forward the theory of "separation of three powers" in agricultural land,and advocated that land contractual management rights should be divided into land management rights that can be mortgaged and land contracting rights with identity attributes;The land contractual management right is complete with the usufructuary right and power,and the social security function is removed,so that the land contractual management rnght can be mortgaged.The central government focused on land reform on the basis of social stability.Therefore,the theory of economics was adopted,and the policy of "three rights separation" of agricultural land was put forward and the pilot of land management rights mortgage was launched.The major reforms in the law have determined that the reform of the"three powers separation" of agricultural land requires the deep participation of the legal scholars and gives full play to the role of legal researchers.The legal scholars have turned to the study of the theory of "three powers separation"in agricultural land.From the beginning of whether the "three powers separation" of agricultural land conforms to the legal logic,it extends to the legal norm expression of the "three powers separation"of agricultural land,and then extends to the construction of the supporting system related to the mortgage system of land management rights.The study of the legal profession runs through the entire process of the revision of the Rural Land Contract Law,and continues to influence the compilation of the Civil Code's property rights,providing a number of useful perspectives for relevant legislation.The "Rural Land Contract Law Amendment(2018 Amendmenty)"(hereinafter referred to as the "New Law")has been promulgated and implemented.The provisions on the mortgage of land management rights are not lacking,but there are still some shortcomings.If the regulations are not clear enough,in conjunction with the formulation of the provisions on the rights of the Civil Code,the establishment of organic linkages.The theoretical controversy over the separation of the three rights of agricultural land has not yet subsided.The coordination of the legislation of property rights and the new law,the application of the new law and the improvement of the supporting system of land management rights have yet to be discussed in depth.After studying the theory of the separation of the three powers of agricultural land,this paper argues that the normative legal expression of the"three powers separation," of agricultural land should be constructed and the nature of land management rights should be Positioned as "the right to use property rights above the land management right",the collateralization of the land management rights can largely alleviate the financing difficulties in agricultural development.Before the promulgation of the new law,China's laws prohibit the mortgage of land contractual management rights,and there are drawbacks of restricting the property value of land contractual management rights.Therefore,the construction of land management rights mortgage system should start from the improvement of legal provisions.It systematically interprets the new law and makes recommendations on the formulation of relevant provisions of the Civil Code.It is the first essential to clarify the nature of land management rights and the specific rules for mortgage of land management rights.Three successful models have been formed in the pilot of land management rights mortgage,but it also exposes problems such as difficulty in value evaluation,difficulty in realizing mortgage rights,and imperfect circulation market.It is necessary to improve relevant supporting systems for these problems,with a view to constructing a relatively perfect one.The mortgage system for land management rights promotes the development of agricultural modernization.