Research On The Application Of Financing Guarantee For Land Management Rights Under The "Three Separation Of Rights"

The financing guarantee of land operation right plays an important role in giving play to the economic value of land and promoting the circulation of land resources.The object of this study is the financing guarantee for land operation right stipulated in Article 47 of the Rural Land Contracting Law of the People’s Republic of China.The full text consists of four chapters.The first chapter is an analysis of the current situation of land operation right financing guarantee under the " three separation of powers",which analyzes the current law and the situation of practical pilots,and puts forward the problems faced by the introduction of land operation right financing guarantee measures.Chapter 2 first analyzes the legal attributes of land operation rights,discusses the irrationality of creditor’s rights theory and dualism,analyzes the advantages of property rights theory compared with the first two theories from multiple angles,clarifies the right attributes of land operation right usufruct rights,and then defines the form of financing security for land operation rights,and proposes that the traditional "formalism" of the division of security rights into security rights should be abandoned,and start from the "functionalism" of the guarantee system.It is no longer necessary to distinguish whether the form of financing security for land operation rights is mortgage or pledge,and only recognized as a security interest;Chapter 3 fully improves the content of land operation right financing guarantees,and selects the procedures for land operation right financing guarantees,first clarifying the scope of the main and object of land operation right financing guarantees,including guarantors,security holders,and security objects,etc.,and secondly analyzes the problems existing in the current procedures for the establishment of land operation right financing guarantees,such as registration issues,written consent of contractors,filing with the contracting party,and refers to relevant policy documents in many places in the discussion.Chapter 4 on the realization of financing guarantees for land operation rights first analyzes the feasibility of the current implementation methods existing in the Civil Code and puts forward areas for improvement,and then elaborates on the policy documents and innovative implementation methods that appear in local practice,including loan restructuring,loan extension,trusteeship and village collective buyback,and also proposes and refines the implementation methods of compulsory management according to the newly promulgated Civil Enforcement Law of the People’s Republic of China(Draft).Finally,this chapter also puts forward suggestions for the improvement of the supporting system for the realization of land operation right financing guarantees,and proposes that the realization of land operation right financing guarantees also needs to introduce grassroots organizations,establish value assessment institutions,strengthen government support,and improve social security.