| The policy of "separation of the three rights" has changed the right relationship of the existing rural land in our country.The highlight is to allow farmers to use the right to operate the land for mortgage financing and give full play to the property rights of the rural land.The current legislation has written the mortgage system of the right to land management into the law,formally establishing the legality of the mortgage of the right to land management.The mortgage system of land management right in our country is still at the primary stage of development,and there are many unsolved problems.To protect the interests of farmers in our country and promote the development of rural economy,it is necessary to further study its mortgage system and solve the obstacles in the existing mortgage system of land management right in our country.Apart from the introduction and conclusion,this article will be divided into four chapters to study the mortgage system of land management rights in China.The first chapter is about the historical evolution and current situation analysis of the mortgage system of land management rights in China.As early as the "separation of the two powers" period,our country tried to encourage the circulation and mortgage of the right to contracted management of land and to explore the economic benefits of agricultural land.The policy of "separation of three rights" has changed the framework of land rights in the "two rights period",separating a brand-new land right from the right to land contractual management,namely the right to land management,and proposing to allow farmers to mortgage and finance the right to land management,thus providing policy support for the development of China’s mortgage system for the right to land management.The new "Rural Land Contract Law" formally stipulates the legality of China’s land management right mortgage system in legislation and provides legal guarantee for the operation of China’s land management right mortgage system.China has already set up pilot test areas for mortgage of land management rights in many places and formed some typical test models,providing a lot of practical experience for the practice and promotion of mortgage system of land management rights in China.The second chapter studies the main problems in the mortgage system of land management rights.In our country,the establishment of mortgage of land management right often involves three parties,including the mortgagor,i.e.the right holder of contracted farmers or other land management rights,as well as the mortgagee.In legislative and judicial practice,the mortgagee is generally a financial institution.In addition,the establishment of mortgage of land management right in our country requires the record or consent of the employer.This paper analyzes the legal provisions on the scope of the subject of land management right mortgage and the theoretical disputes over it,so as to solve some problems existing in the establishment of the subject system of land management right mortgage in our country.In the future,it is necessary to establish a qualification examination and filing system for the mortgagee and mortgagor of the right to land management,to appropriately expand the scope of the mortgagee’s qualifications,and to improve other related supporting measures to ensure the realization of the rights of all parties in the mortgage system of the right to land management in China.The third chapter discusses the dispute and feasibility of the right to land management as the object of mortgage.The suitability of China’s land management right as the object of land mortgage lies in its "property" and "circulation".The current legislation does not stipulate the nature of the right to operate land,but there are different views and theories on the nature of the right to operate land in theory,mainly including "the theory of real right","the theory of creditor’s rights" and "the theory of two yuan".Demonstrate the real right nature of the land management right and set it as a real right,which can well meet the needs of farmers’ financing in our country.The real right nature of the land management right is secured by mortgage,which is conducive to the unification of our country’s agricultural land security methods.Based on the consideration that the mortgage of land management rights can realize the mortgage value to the maximum extent,the mortgage period should be appropriately extended to increase the value of land management rights as mortgaged goods.The fourth chapter is to solve the practical obstacles in the realization of the mortgage right of land management right.As a kind of special collateral,the right to land management should meet the special conditions for the circulation and realization of the right to land management in addition to the conditions for the realization of ordinary collateral.The scope of the collateral involved in the realization of the mortgage right shall be confirmed according to the circumstances.There are few ways to realize the mortgage right of land management right in our country,which is not enough to meet the needs of practice.Moreover,the lack of a unified transfer trading platform and transfer value evaluation mechanism has caused obstacles to the development and operation of the mortgage system of land management right in our country.Therefore,in the future,it is necessary to innovate a variety of ways of realization,such as establishing a compulsory management organization,canceling the priority foreclosure rights within the collective members,forming a special trading market for the transfer of land management rights and a unified value evaluation mechanism,and realizing the mortgage right through the market transfer of land management rights,so as to ensure the realization of creditor’s rights.In the process of writing this article,the author has read a lot about the theoretical knowledge of the current farmland right mortgage guarantee financing system in our country,as well as the relevant knowledge of the rural land right guarantee,combined with the current regulations and problems encountered in our country’s relevant legislation on farmland right mortgage,to perfect and solve the existing problems and obstacles in our country’s legal land right mortgage system,and to construct our country’s unique land right mortgage system. |
