| China is a big agricultural country.With the development of society and the progress of science and technology,agriculture has changed from traditional agriculture to modern agriculture.With the acceleration of urbanization,the phenomenon of rural land abandonment is serious.The drawbacks of the original right system have been exposed through long-term practice,which no longer meet the requirements of high output and high efficiency of modern agriculture.The main body of agricultural operation is gradually showing a trend of diversification.The development of modern agriculture is characterized by a large demand for funds.At the same time,the lack of sufficient funds is also the bottleneck restricting the development of modern agriculture.Therefore,it is urgent to solve the problem of financing difficulties of agricultural management bodies.In 2014,China put forward the policy of"separation of three rights",separating the land management right from the land contract management right,releasing the property right attribute of land management right,and gradually liberalizing the financing function of land.The newly revised Law on Rural Land Contracting in 2018 allows land management rights to be mortgaged,providing a way out for rural land operators facing financing difficulties.In 2020,the Civil Code included relevant content on land management rights in the category of real rights,providing legal guarantee for the advancement of the system of land management rights.In recent years,the mortgage of land management right has become a hot issue,which has caused different forms of exploration and heated discussion in academic circles.The author intends to study the problems existing in the mortgage system of land management right under the "separation of three rights".The article is divided into the following parts(excluding the introduction and conclusion):The first part is a general discussion on the mortgage of land management right from the perspective of "separation of three rights".The author elaborates the concept of "separation of three rights" and its development origin,rural land management right and its mortgage guarantee system,including the definition of "separation of three rights" and land management right,legal characteristics,historical evolution and legal basis of legal provisions,and the legitimacy and connotation of land management right mortgage.The second part expounds the current situation and existing problems of land management right mortgage.The mortgage policies and laws of land management rights are summarized,and five problems are put forward,including unclear mortgage subject,unclear object scope,imperfect mortgage setting rules,imperfect mortgage implementation mechanism of land management rights,and imperfect supporting facilities for the mortgage of land management rights.The third part explores the operation mode and deficiency of the typical pilot area,and gets enlightenment from it.This paper summarizes and analyzes the current pilot models of land management right mortgage in China,and summarizes the pilot models of local mortgage as "direct mortgage" model,"counter-guarantee mortgage" model,"third-party guarantee mortgage" model,and "rent mortgage" model.The advantages and disadvantages of each model are analyzed,and the enlightenment of mortgage guarantee for land management right is summarized.The fourth part puts forward some suggestions on the deficiency of the mortgage system of land management right.Correspondingly to the legal obstacles and system defects proposed in the second part,this part analyzes in detail the sound measures of the legal system of mortgage of land management right and related supporting systems.Strive to provide reasonable suggestions for the improvement of land management right mortgage system. |
