Research On The Dilemma And Viable Solutions Of Land Management Right Mortgage

China's rural land gradually established the household contract responsibility system since the initial stage of reform and opening up,which still plays an important role in ensuring national food security and maintaining social stability.However,the "separation of the two rights" cannot meet the requirements of the current agricultural modernization.In particular,the mortgage financing of the land contracting and management rights has not been recognized by law.Therefore,the rural land contract system has been adjusted accordingly.The collective ownership of agricultural land remains unchanged,and the land contract and management right is divided into land contract right and land management right in the circulation.At the same time,land management rights are also endowed with financing guarantee function.The legal permission has promoted the practice in various pilot areas,among which the mortgage mode of land management right of Sihong County in Jiangsu Province and Tongxin County in Ningxia Hui Autonomous Region has provided rich experience for other regions to carry out mortgage loan work.However,as an important emerging right,the land management right inevitably has some problems in the design and practice of the mortgage system.First,there is a dispute over whether the mortgagor is a rural household or members of family.The right of land contracting and management is enjoyed by the members of collective economic organizations,but the rural land contracting is usually carried out by peasant households.As the property value of land management2 rights becomes increasingly prominent,contradictions between the financing needs of individual members of peasant households and the household contract mode of agricultural land cannot be excluded,which leads to practical problems such as the definition and segmentation of the common state of contracted land.Secondly,the mortgage of land management right should be approved by the contractor.The purpose of this provision is to protect the rights and interests of land contractors,but whether it has wide applicability is worth considering.Especially for the agricultural subject of scale operation,the complicated work will also lead to the rise of financing cost.Moreover,scholars' views on the registration effectiveness of mortgage of land management rights are different from the provisions of the new rural land contract law,and there are still some disputes on the choice of mortgage registration effectiveness doctrine or registration antagonism doctrine.Finally,in practice,it often happens that the contractor directly gets the loan by mortgaging the land management right within the remaining contract period.When the contractor fails to repay the loan and the land management right is disposed,the contractor will lose the land management right within the contract period.When the land contractor or operator refuses or even interferes with the mortgagee to deal with the mortgage right,the mortgage and disposal of the land management right may also face moral hazard.The land management right,which is derived from the land contract management right,has been stripped of its identity attribute as far as possible by means of "splitting".In spite of this,the final function object of land management right still points to agricultural land,which cannot completely get rid of the social influence in the process of generation,change and elimination of the right.That is to say,land management right is a compound right,which has both social and valuable aspects.This is the root of the institutional dilemma of mortgage of land management right.On one hand,land management right is defined as property right,which aims to promote the transfer of agricultural land and facilitate the contractors and agricultural operators to obtain economic benefits respectively.If the land management right wants to fulfill the financing function smoothly,the land circulation and mortgage must be standard,so that it can be known and trusted by the counterpart.Theadvantage of mortgage registration lies in this.On the contrary,the argument that the mortgagee is a farmer or a member of a farmer is a hidden worry that the property value of land management rights may split rural families and affect rural stability.On the other hand,in fact,rural land bears a certain social security function,which is of great importance to farmers.The contractor's mortgage consent right is also a protection for the contractor's inner stability.Because of the existence of social value of agricultural land,the transfer of land management right is difficult to be completely marketized in short term,so does financing guarantee.In addition,the property value and transferability are required to become a qualified mortgage property.However,the disposal of land management right is difficult at present,and the integration with the mortgage system still needs some time.In the face of the institutional dilemma of mortgage of land management right,we should first adhere to the standardization of mortgage operation.The mortgage rules specified in laws and regulations should be followed to ensure the mortgage and disposal of land management rights can be carried out smoothly.Secondly,we should internalize the disposal cost of land management right before and after the mortgage of land management right.On the premise of safeguarding the interests of the mortgagee,the mortgage of land management rights should be reduced as far as possible to protect contractor's interests and social stability through a certain system design,.Finally,improving relevant supporting measures is also an important experience to ensure the smooth operation of the mortgage system.