| After the "three rights separation" policy was introduced into the law,a ternary rights structure of "ownership + land contract management right + land management right" was formed on the contracted land.As a new type of land right,the right to land management has attracted much attention from the academic community since it was proposed,and many discussions have been held around it.The most controversial issue is its nature.Originally looking forward to the opportunity to amend the Rural Land Contract Law to define the nature of land management rights,the legislator’s attitude was ambiguous and unclear.Although the property code of the Civil Code also stipulates the land management right,it is still a duplication of the relevant provisions of the Rural Land Contract Law,without any breakthrough in content and nature.In theory,various theories that advocate the nature of land management rights are discussed under the "conceptualized" bifurcation framework of property debts,that is,the nature of land management rights as property rights is single,which is either property rights or debt rights.But when we serialize the "conceptualized" property debt dichotomy system,the basic attributes of a right are related to the change in strength and combination of the elements that describe its basic characteristics.There are several There are multiple types of independent property rights that have different attributes due to the different strengths of the constituent elements.Defining the nature of land management rights under this "serialization" bipartite framework of property debt,it can be concluded that land management rights have the typical characteristics of both property rights and creditors due to their absolute strength.The type of independent property right that is chosen to be established or tends to a creditor’s right or to a real right.This article follows the basic idea of asking questions,analyzing questions,and solving problems.It takes the nature of land management rights as the core issue,and points out the theoretical controversy about the nature of land management rights.Correction,and further define the nature of land management rights based on the correction of the two-point system of property debt.Therefore,this article is divided into three parts:The first part is the problem-proposing part.Based on the history of the legislative evolution of the land management right from policy terms to legal language and the current norms,it summarizes and analyzes the theoretical disputes over the nature of land management right,and analyzes the "property theory" and "debt theory".The respective theoretical viewpoints and shortcomings of the "dual theory of property debt" further pointed out that the essence of the above-mentioned dispute lies in adhering to the concept of absolute distinction between property rights and debt rights under the traditional property debt dichotomy system.Therefore,we should explore the theory of the property debt dichotomy.Defining land management rights.The second part is the theoretical reflection part,focusing on the property debt dichotomy system and its shortcomings,from the development history and system defects to the system reconstruction.It points out that the property debt dichotomy system is the product of conceptual law.The continuous emergence of property rights,there are many correlations between real rights and creditor’s rights,unable to adapt to the development of the times.The type-sequence theory should be used to transform the dichotomy system of property and debt,and then to construct the type sequence between property rights and debts with absoluteness as the determining factor,and provide a new theoretical perspective and analysis of new property rights,especially land management rights.Thinking path.The third part is the nature interpretation part.Through the deconstruction and reconstruction of the property debt dichotomy,the land management right specifications in the Rural Land Contract Law and the Civil Code are explained under the serialized material debt dichotomy.Then,it is concluded that the definition of the ownership of land management rights is not a choice between real rights and creditor’s rights,but should be compatible with the types and characteristics of real rights and creditors’ rights. |
