论耕地承包经营权抵押的制度构建

发布时间：2018-07-25 14:12

【摘要】：耕地天然是拥有多重性格的“狄俄尼索斯”,耕地承包经营权抵押的合理性、设立、效力、实现程序及方式都存在市场性与保障性、效率与公平的角力。既要盘活农地的市场要素功能,又要保障农民的生存权不受侵害、抵押权人利益不受减损,这就需要在耕地承包经营权抵押制度的构建中运用公私融合的理念,《耕地承包经营权抵押条例》试拟稿是对未来法律制度建构的一种探索与尝试。国家政策对耕地承包经营权的“开禁”可谓是有着坚实理论和现实基础的对市场和实践的积极回应,但立法上这一领域尚属空白,所以,在具体法律制度的架构上,还需关注和维护地权的安全性、稳定性。耕地承包经营权抵押脱胎于传统的不动产抵押权,系不动产用益物权抵押。抵押人包括但不限于农户,但是抵押人只能为自有耕地经营之利益贷款,抵押人拥有设押的自主选择权,不受经济收入及发包人意志等因素的影响。以耕地承包经营权为担保为农民提供长期农业贷款的金融机构是目前主要的抵押权人,参酌国内外现例,未来应设立土地银行并辅之监督、保险等制度。法学视域下,“三权分置”理论难以成立,债权性权利不可以作为抵押财产,所以耕地承包经营权抵押的抵押财产是物权性的耕地承包经营权,非经营权,亦非所有的耕地承包经营权,基于此耕地承包经营权抵押效力不及于农作物、农产品和法定孳息,但及于在先设立的地役权和征收补偿金。我国物权法认可一般意义上的抵押物转让,承认抵押权的追及效力和代价清偿,但是基于制度初衷和现实可操作性的考量,设押后抵押人不得再转让、转包承包经营权,再互换、再出抵以维持原抵押权人利益为底线。在抵押权的实现中,司法实现程序和约定实现程序可以并行,在司法实现程序中需要先通过“实现担保物权案件”程序取得执行依据,再强制执行,以维持抵押关系当事人之间的利益平衡,同时要注重发挥强制管理制度的优越性,以强制管理收益保障债权的实现。
[Abstract]:The nature of cultivated land is "Dionysus" which has many characters. The rationality, establishment, effectiveness, realization procedure and mode of the mortgage of the contracted management right of cultivated land all have the struggle of market and security, efficiency and fairness. It is necessary to invigorate the function of market elements of agricultural land, and to ensure that the peasants' right to exist is not infringed upon, and the interests of the mortgagee are not impaired. It is necessary to apply the idea of the combination of public and private in the construction of the mortgage system of the contracted management right of cultivated land. The draft of the regulations on the mortgage of the right to contract management of cultivated land is a kind of exploration and attempt for the construction of the legal system in the future. The ban of the state policy on the contracted management of cultivated land can be described as a positive response to the market and practice with a solid theoretical and practical foundation, but the legislation in this field is still blank, so, in the framework of the specific legal system, Also need to pay attention to and maintain the security and stability of land rights. Cultivated land contract management right mortgage originates from traditional real estate mortgage, which is real estate usufruct mortgage. The mortgagor includes, but is not limited to, farmers, but the mortgagor can only lend for the benefit of the management of his own cultivated land, and the mortgagor has the option to set up the mortgage independently, which is not influenced by the economic income and the will of the contractor. Financial institutions providing long-term agricultural loans to farmers under the guarantee of the right to contract management of cultivated land are the main mortgagees at present. Taking into account the current cases at home and abroad, land banks should be set up in the future, supplemented by supervision, insurance and other systems. In the legal field of view, the theory of "three rights division" is difficult to establish, and the creditor's rights can not be used as collateral property, so the mortgaged property of cultivated land contractual management right is the real right to contract management of cultivated land, not the right to operate. On the basis of this, the mortgage of the contracted management of cultivated land is less effective than the crops, agricultural products and civil fruits, but also the easements and the collection of compensation which were established in the first place. The property law of our country recognizes the transfer of mortgaged property in the general sense, and acknowledges the recovery, effectiveness and liquidation of the mortgage. However, based on the consideration of the original intention of the system and practical maneuverability, the deferral mortgagor is not allowed to transfer and subcontract the right to operate. In order to maintain the interests of the mortgagee as the bottom line. In the realization of mortgage, the judicial realization procedure and the agreed realization procedure can be parallel. In the judicial realization procedure, the execution basis should be obtained through the procedure of "realizing the case of security interest", and then the enforcement should be enforced. In order to maintain the balance of interests between the parties concerned, we should pay attention to the advantages of the compulsory management system and ensure the realization of the creditor's rights by the compulsory management income.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.32;D923.2

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