An Empirical Study On Rural Financing Guarantee

On January 1,2019,the newly revised rural land contract law stipulates that the land management right can be used to provide financing guarantee to financial institutions,which provides a powerful guarantee way for rural financing.However,there are disputes on the legal nature of security interest under the financing of land management right in judicial practice and academic circles.The court has different judgments on the financial loan dispute cases of land management right guarantee,and there are different opinions on the mortgage or pledge of land management right guarantee in academic circles.In practice,financial institutions and agricultural operators sign land management right guarantee contracts.Comparatively speaking,there are more mortgage contracts and less mortgage contracts.The court generally recognized that the real right of security under the financing of the land management right is the mortgage right,and disputed the validity of the pledge contract of the land management right.There is a great controversy on the legal nature of the real right of guarantee under the financing of land management right in the academic circles.The theory of mortgage and the theory of pledge have different opinions,but the legislation is vague and specific,and directly adopts the upper concept of "guarantee" of mortgage and pledge.On the surface,the modification of the relevant provisions of the new rural land contract law,especially the new provisions of Article 47 on financing guarantee of land management right,is the direct cause of the dispute.In depth,the definition of the legal nature of the land management right has not been unified.There are mainly disputes on the theory of creditor’s rights,the theory of usufructuary rights,the theory of materialized creditor’s rights and the theory of power and ability.In legislation,the theory of double rights is adopted to distinguish the nature of the right by whether the term of the land management right exceeds 5 years.In the research and selection of samples,27 effective judgment documents were selected as samples by searching relevant judgment documents related to financing disputes of land contract management right on websites such as "no litigation cases" and "Weike advanced legal database".This paper re classifies the research samples,and analyzes the reasons of the selection of guarantee methods under the financing of land management rights by the parties to the contract in practice,which are mainly influenced by the traditional mortgage products and concepts of financial institutions.Finally,according to the judicial practice of the land management rights for financing and guarantee of the judgment point of view and relevant legal theory,combined with the "separation of three rights" national policy guidance and the opportunity of the "Civil Code",put forward countermeasures to solve the legal issues.It is suggested that the civil code should define the right of land management as usufruct,and the relevant departments should promulgate the specific measures for financing guarantee of the right of land management as soon as possible,innovate the way to realize the real right of guarantee under the financing of the right of land management,perfect the relevant legal supporting system,provide perfect legal support for solving the problem of financing guarantee of rural villages,and help the country to realize the revitalization and inclusive benefits of villages and towns Financial objectives provide legal protection.