Research On The Legal Issues Of Rural Land Management Right Mortgage Financing Under The "Separation Of Three Rights"

After more than 40 years of development and change,the household contract responsibility system determined by the "second round contract" of land presents the competitive disadvantage of small scale of land and fragmented cultivated land in practice,which restricts the use and transfer of land contract management right,and has been unable to adapt to the development needs of agricultural modernization in the new era,and also unable to meet the interests of farmers.In addition,the urbanization process has brought a large number of non-agricultural agricultural population,and the crops are constantly changing from food crops to economic crops.Farmers’ demand for agricultural circulation is no longer limited to the rights of the land itself,but more urgently need to obtain the economic benefits of market circulation.Since the Third Plenary Session of the 18 th Central Committee of the Communist Party of China in 2013,a series of changes have taken place in rural land system in China.Since then,the "Separation of Three Rights" era of building a new agricultural management system has begun to explore the theory and practice of rural land management right mortgage.Its fundamental goal is to "revitalize the land management right" and give more rights to the land management right,this makes rural land gradually become a kind of financial capital,and promotes the smooth development of the mortgage of farmland management right.Farmers mortgage the property rights on the land,that is,the land management right,as a security right of financing loans,and obtain mortgage loans from financial institutions.To a certain extent,it widens the channels for farmers to obtain funds,so as to support the development of agriculture.The expansion of the scale of agricultural production will help to finance the development of modern agriculture.Based on the fundamental value goal of the mode of "Separation of Three Rights" in the agricultural management system,which is collective land ownership,right to contract farmers and operation of separate fundamental value target,this paper expounds the legal expression of "Separation of Three Rights" from the theoretical point of view,clarifies the legal attribute of the rights after the separation of land contract and management rights,and explains the necessity of the financing guarantee right of land management rights from the theoretical point of view.It is defined as mortgage,not pledge,which echoes the theme of this paper.Then,under the background of "Separation of Three Rights",the paper analyzes the theoretical basis and practical feasibility of allowing the mortgage of land contractual management right,so as to lay a theoretical foundation for the practical analysis of the complete mortgage financing system of land contractual management right.Secondly,it combs the policy evolution and legislative status of mortgage financing of land contractual management right in chronological order,and gradually analyzes the reality and difficulties of mortgage financing of land contractual management right in China under the "Separation of Three Rights".The main legal issues involve the unclear determination of the subject and object of mortgage,the imperfection of the rules for the establishment of the mortgage of land management right,the controversy on the establishment conditions and registration effectiveness of the mortgage of land management right,and whether the mortgage financing of land management right can naturally apply to the realization of rights such as auction,sale and discount of general mortgage.In addition,there are also some problems in the external system,such as the market trading platform has not been established,the value evaluation methods of land management rights are uneven,and the perfect agricultural insurance mechanism has not been established.Furthermore,in view of the various difficulties currently faced,this paper puts forward the improvement ideas of the current legal system of land management right mortgage,including a series of specific measures for the legal construction and improvement of land contract management right mortgage circulation,such as the determination of both parties to the mortgage,the scope of the mortgage object,the mortgage registration system,the specific way of mortgage realization,etc.Finally,put the land management right mortgage system in the background of agricultural management system,and put forward suggestions on the improvement of relevant supporting system,mainly from the aspects of maintaining an appropriate scale of agricultural land management,the value evaluation system of mortgage object,and risk prevention mechanism.