Research On The Mortgage Of Rural Contracted Land Management Right Under The Condition Of "Three Rights Separation"

As China's economy has entered a new normal,agriculture has also transformed in the direction of modernization.The scattered and fragmented agricultural production that existed in China before was gradually replaced by moderately-scaled agricultural production,and new type of agricultural production and operation emerged.However,financing difficulties have become the bottleneck of modern agricultural production.To solve this problem,the central government proposed the"three rights separation" theory in the No.1 document of 2014,creatively giving rural contracted land management rights a mortgage.This institutional design has led to extensive discussions in the jurisprudential circle,because in the current law,the right to contracted land is explicitly prohibited from mortgages,and the "land management rights" after the "three rights separation" is unprecedented.Although there are party central policy documents and successful experiences in pilot cities,there is still considerable controversy over the mortgage system for rural contracted land management rights.Therefore,this article studies the issue of the mortgage of the operating right of the contracted land under the "three rights separation",which mainly focuses on the background,legality,practice mode,restriction factors,and suggestions of the mortgage of the land management right.This article mainly adopts the research methods of literature research method and empirical research method.Using the method of literature reading,based on the research purpose of the mortgage of rural contracted land management rights,through a large number of access to academic articles and books related to it,we understand the policy background of mortgages of land management rights and the problems of existing and legal deficiencies,analyzing the legitimacy basis of rural land contracted land management right mortgage.Through the method of empirical research,this paper analyzes the representative practice models of mortgages of land management rights at home and abroad,compares the advantages and disadvantages of domestic models,and draws lessons from foreign mature institutional experiences.This study finds that the factors that restrict the mortgage of rural contracted land management rights mainly exist in both legal and practical aspects.Legally,due to the constraints of the local collective economic organizations,the realization of mortgage rights is relatively scarce,and there are also many uncertainties in the factors affecting the validity of mortgage rights,such as whether mortgage loans can be used in non-agricultural businesses and whether mortgage rights are effective for crops,etc.In practice,the trading market for the transfer of land management rights is incomplete,the valuation of land management rights is unscientific,and the agricultural risk is high.For the above issues,this article also proposes targeted suggestions.On one hand,it breaks through the constraints of the collective economic organization and excludes the will of the employer or the original contractor when setting the mortgage rights.The members of the collective economic organization also have no preferential right of transfer when the mortgage right is realized.Mortgage rights can be realized through auctions,sale,and mandatory management.It also clarifies that the use of mortgage loans can only be used in agricultural production and management,and the mortgage rights are not effective for crops on the ground.On the other hand,this article suggests that,in the practical supporting system,a third-party land management right evaluation agency be introduced,a transaction market for the transfer of land management rights be established,agricultural professional managers be cultivated,and the establishment of the agricultural insurance system be strengthened.