家庭土地承包经营权抵押问题研究
发布时间：2018-10-12 12:55
【摘要】：随着我国农村经济社会的发展,在部分发达地区,农民的主要收入来源不再是农业产业,而是非农产业,农民对农地的依附性减弱,农地的社会保障功能也在逐渐弱化。为了提高土地的利用效率,农民希望通过家庭土地承包经营权的抵押以获取农业发展资金,进而促进农村社会的发展。然而,现行法律为了强化家庭承包地的社会保障功能,弱化了农地的资本属性,禁止家庭土地承包经营权抵押。近年来,《关于全面深化农村改革加快推进农业现代化的若干意见》、《关于开展农村承包土地的经营权和农民住房财产权抵押贷款试点的指导意见》等一系列政策性规范的出台,释放出了允许家庭土地承包经营权抵押的信号,家庭土地承包经营权抵押势在必行,农村、农业和农民将从中受益。本文主要研究了以下几个问题：家庭土地承包经营权抵押的法律和政策现状如何?学术界对家庭土地承包经营权能否抵押的观点如何?家庭土地承包经营权作为家庭土地承包经营权抵押的客体,是怎样一种权利?家庭土地承包经营权抵押的政策考量何在?家庭土地承包经营权抵押的法律规则应当如何设计?本文对上述问题逐一进行了解答。全文分为四个部分：第一部分通过两则家庭土地承包经营权抵押纠纷案例的对比分析,提出了本文的研究问题。简要介绍了本文的研究价值、研究现状和研究方法。第二部分首先分析了家庭土地承包经营权的特点,主要论述了以下三点：第一,家庭土地承包经营权的法律性质；第二,家庭土地承包经营权的权利主体；第三,家庭承包与非家庭承包之比较。其次,该部分梳理了家庭土地承包经营权抵押的法律现状、政策现状和学术分歧；第一,现行法律禁止了家庭土地承包经营权的抵押；第二,近年来,国家出台了一系列的政策支持了家庭土地承包经营权的抵押;第三,围绕家庭土地承包经营权抵押的肯定说与否定说之辩,笔者表明了对家庭土地承包经营权抵押的支持,并阐释了原由。以上论述为家庭土地承包经营权抵押的规则设计提供了基础。第三部分评述了家庭土地承包经营权抵押的政策试点存在的问题。在介绍福建明溪县和宁夏同心县家庭土地承包经营权抵押政策试点经验的基础上,指出政策试点中尚待解决的四个问题：家庭土地承包经营权的价值评估；土地确权登记；土地流转市场的建设；抵押贷款的风险防控。这些问题的解决是家庭土地承包经营权抵押制度顺畅运行的前提条件。第四部分比较完整地提出了家庭土地承包经营权抵押的设计方案及其理由。
[Abstract]:With the development of rural economy and society, in some developed areas, the main source of farmers' income is not agricultural industry, but non-agricultural industry. The dependence of farmers on agricultural land is weakened, and the social security function of agricultural land is gradually weakened. In order to improve the efficiency of land use, farmers hope to obtain agricultural development funds through the mortgage of household land contractual management right, and then promote the development of rural society. However, in order to strengthen the social security function of the land contracted by the family, the current law weakens the capital attribute of the farmland and forbids the mortgage of the contractual management right of the family land. In recent years, several opinions on comprehensively deepening rural reform and speeding up agricultural modernization, and guidelines on conducting pilot projects on the management of contracted land in rural areas and on housing property rights of farmers, and on mortgage loans for housing property rights of farmers, have been issued. Release the signal that allows the family land contract management right mortgage, the family land contract management right mortgage is imperative, the countryside, agriculture and farmers will benefit from it. This article mainly studies the following several questions: what is the current situation of the law and policy of the household land contract management right mortgage? What is the view of academic circles on whether the right to contract management of family land can be mortgaged? What kind of right is the right of household land contract management as the object of the mortgage of family land contract management right? What is the policy consideration of the mortgage of the right of household land contract management? How should the legal rules of the family land contract management right mortgage be designed? The above questions are answered one by one in this paper. The paper is divided into four parts: the first part puts forward the research problems of this paper through the comparative analysis of two cases of mortgage disputes over the contractual management right of the family land. This paper briefly introduces the research value, research status and research methods. The second part first analyzes the characteristics of the family land contractual management right, mainly discusses the following three points: first, the legal nature of the family land contractual management right; second, the rights of the family land contractual management right; third, Comparison between household contract and non-household contract. Secondly, this part combs the current situation of the law, the policy and the academic differences of the family land contractual management right mortgage; first, the current law forbids the family land contract management right mortgage; second, in recent years, the current law prohibits the family land contract management right mortgage; second, in recent years, The state has issued a series of policies to support the mortgage of the right to contract the management of family land. Thirdly, the author has demonstrated the support for the mortgage of the right to contract management of the family land around the debate between the positive and negative theories of the mortgage of the right to contract management of the family land. And explained the original reason. The above discussion provides the foundation for the family land contract management right mortgage rule design. The third part reviews the problems existing in the policy pilot of household land contract management right mortgage. On the basis of introducing the experimental experience of household land contract management right mortgage policy in Mingxi County and Ningxia Tongxin County, Fujian Province, this paper points out four problems that remain to be solved in the policy pilot project: the value evaluation of the household land contract management right; Land transfer market construction; mortgage risk prevention and control. The solution of these problems is the precondition for the smooth operation of the mortgage system. In the fourth part, the author puts forward the design scheme and its reasons of the right of household land contract management.
【学位授予单位】：扬州大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：F321.1
本文编号：2266192
[Abstract]:With the development of rural economy and society, in some developed areas, the main source of farmers' income is not agricultural industry, but non-agricultural industry. The dependence of farmers on agricultural land is weakened, and the social security function of agricultural land is gradually weakened. In order to improve the efficiency of land use, farmers hope to obtain agricultural development funds through the mortgage of household land contractual management right, and then promote the development of rural society. However, in order to strengthen the social security function of the land contracted by the family, the current law weakens the capital attribute of the farmland and forbids the mortgage of the contractual management right of the family land. In recent years, several opinions on comprehensively deepening rural reform and speeding up agricultural modernization, and guidelines on conducting pilot projects on the management of contracted land in rural areas and on housing property rights of farmers, and on mortgage loans for housing property rights of farmers, have been issued. Release the signal that allows the family land contract management right mortgage, the family land contract management right mortgage is imperative, the countryside, agriculture and farmers will benefit from it. This article mainly studies the following several questions: what is the current situation of the law and policy of the household land contract management right mortgage? What is the view of academic circles on whether the right to contract management of family land can be mortgaged? What kind of right is the right of household land contract management as the object of the mortgage of family land contract management right? What is the policy consideration of the mortgage of the right of household land contract management? How should the legal rules of the family land contract management right mortgage be designed? The above questions are answered one by one in this paper. The paper is divided into four parts: the first part puts forward the research problems of this paper through the comparative analysis of two cases of mortgage disputes over the contractual management right of the family land. This paper briefly introduces the research value, research status and research methods. The second part first analyzes the characteristics of the family land contractual management right, mainly discusses the following three points: first, the legal nature of the family land contractual management right; second, the rights of the family land contractual management right; third, Comparison between household contract and non-household contract. Secondly, this part combs the current situation of the law, the policy and the academic differences of the family land contractual management right mortgage; first, the current law forbids the family land contract management right mortgage; second, in recent years, the current law prohibits the family land contract management right mortgage; second, in recent years, The state has issued a series of policies to support the mortgage of the right to contract the management of family land. Thirdly, the author has demonstrated the support for the mortgage of the right to contract management of the family land around the debate between the positive and negative theories of the mortgage of the right to contract management of the family land. And explained the original reason. The above discussion provides the foundation for the family land contract management right mortgage rule design. The third part reviews the problems existing in the policy pilot of household land contract management right mortgage. On the basis of introducing the experimental experience of household land contract management right mortgage policy in Mingxi County and Ningxia Tongxin County, Fujian Province, this paper points out four problems that remain to be solved in the policy pilot project: the value evaluation of the household land contract management right; Land transfer market construction; mortgage risk prevention and control. The solution of these problems is the precondition for the smooth operation of the mortgage system. In the fourth part, the author puts forward the design scheme and its reasons of the right of household land contract management.
【学位授予单位】：扬州大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：F321.1
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