农村承包土地经营权抵押制度构建研究

发布时间：2018-05-12 08:18

本文选题：农村承包土地经营权 + 抵押　；参考：《河南师范大学》2017年硕士论文

【摘要】：我国正在从农业国向工业国转变的道路上大步迈进,城镇化的程度也在不断提升,农业的发展需要摆脱零碎化经营模式,进行集中规模化生产。在当前的形势下,农村承包土地经营权(以下简称农地经营权)抵押顺应了我国城镇化的趋势,符合走农业现代化发展道路的需求。十八届三中全会以来,政策允许土地承包经营权以抵押方式进行流转。中央办公厅、国务院办公厅联合出台意见,该意见肯定了三权分置的学说理论,将经营权从土地承包经营权中独立出来,坚持农村土地集体所有以保证我国的公有制性质;不变农户承包土地确保土地改革的稳妥推进;放活土地实际经营以激发市场需求。意见同时提出应该尽快修改相关法律保证改革有法可依,做好确权登记工作打好土地改革的基础,建立相应配套机制确保经营权流转规范有序。虽然党和国家的政策已经允许和鼓励包括以经营权抵押方式在内的土地流转,国家的法律层面目前依然没有改变,禁止性条款依然生效,农地经营权抵押的紧箍咒并未消失。受法律、政策及司法解释等相关规范性文件相互冲突的影响,法院在司法实践中如何处理农地经营权抵押意见不一,禁止、回避、默许及鼓励的态度致使判决结果纷繁复杂,这不利于人民群众对农地经营权抵押获得合理预期,不利于人民群众得到正确的规范性指引。在党和国家政策的鼓励下,实践中已有不少试点地区先行一步,农地经营权抵押突飞猛进的快速发展的同时也遇到了不少的问题。这些问题包括农村土地确权登记工作面临重重困难,农地经营权价值评估工作缺乏独立的机构和专业的人员,抵押平台并没有在大范围内建立,相关保障机制并没有得到建立和健全。推行农地经营权抵押,农村综合产权交易所的模式值得推广,农业保险制度对于减少抵押人经营农业时遇到的风险意义重大。同时必须建立农民的保障体系,建立最低生活保障机制消除农民基本生活焦虑,建立农民失业保险稳定农民失地失业的不安、建立医疗保险机制解决农民患病就医的困难,建立农民养老保险消除农民养老的忧虑。
[Abstract]:China is making great strides from the agricultural country to the industrial country, and the degree of urbanization is also increasing. The development of agriculture needs to get rid of the piecemeal mode of management and carry out concentrated and large-scale production. Under the current situation, the rural contracted land management right (hereinafter referred to as the farmland management right) mortgage conforms to the trend of urbanization in China and meets the needs of the development of agricultural modernization. Since the third Plenary session of the 18th CPC Central Committee, the policy allows the transfer of land contractual management rights by way of mortgage. The General Office of the Central Committee and the General Office of the State Council jointly issued the opinion, which affirmed the theory of the separation of the three rights, independent the management right from the land contract management right, and insisted on the collective ownership of rural land in order to ensure the public ownership nature of our country; The unchanging peasant household contracts the land to ensure the land reform to advance steadily, to release the land actual management in order to stimulate the market demand. At the same time, it is suggested that the relevant laws should be amended as soon as possible to ensure that there are laws to be followed, that the registration of confirmed rights should be done well on the basis of land reform, and that a corresponding supporting mechanism should be established to ensure that the circulation of management rights is orderly and orderly. Although the policies of the Party and the state have allowed and encouraged the transfer of land, including the form of mortgage of management rights, the legal aspect of the country has not changed, the prohibition clause is still in force, and the magic of the mortgage of the right to manage agricultural land has not disappeared. Influenced by the conflict of relevant normative documents, such as law, policy and judicial interpretation, the court has different opinions on how to deal with the mortgage of farmland management right in judicial practice. The attitude of prohibition, avoidance, acquiescence and encouragement makes the judgment result complicated and complicated. This is not conducive to the people to obtain reasonable expectations of the right to manage farmland mortgage, is not conducive to the people to get the correct normative guidance. Under the encouragement of the Party and the state policy, many pilot areas have already taken the lead in practice, and the rapid development of the land management right mortgage has also met with many problems at the same time. These include difficulties in the registration of rural land tenure, lack of independent institutions and professionals in the evaluation of the value of agricultural land management rights, and lack of extensive establishment of mortgage platforms. Relevant safeguard mechanism has not been established and perfect. The mode of rural comprehensive property exchange is worth popularizing to carry out the mortgage of agricultural land management right, and the agricultural insurance system is of great significance to reduce the risks encountered by mortgagors in managing agriculture. At the same time, it is necessary to set up a guarantee system for farmers, establish a minimum living security mechanism to eliminate the peasants' basic life anxiety, establish a farmer unemployment insurance to stabilize the peasants' unease of losing their land, and establish a medical insurance mechanism to solve the difficulties for farmers to get sick and seek medical treatment. The establishment of farmers pension insurance to eliminate the worries of farmers to provide for the aged.
【学位授予单位】：河南师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2;D922.32

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