Research On Legal Issues Of Financing Guarantee For Land Operation Rights

The report of the 20 th National Congress of the Communist Party of China proposed to comprehensively promote rural revitalization,develop appropriate scale agricultural operations,and improve the rural financial service system.In this context,modern agriculture continues to develop towards moderate scale and mechanization,farmers’ financial needs continue to increase.Based on this,the Civil Code,the Rural Land Contracting Law,the "separation of powers" policy and a series of policy documents stipulate the circulation and financing guarantee of land operation rights,which provide institutional guarantee for the financing guarantee of rural land operation right and effectively alleviate the financing problem of rural industry.However,due to the imperfection of the legal provisions,the application of the financing guarantee for the right to operate the land is difficult,the results of judicial cases are inconsistent,the land resources have been idle for a long time,and the rights and interests of the guarantor and agricultural operators cannot be realized in a timely manner.Firstly,this paper searches the cases on the financing guarantee of land operation right(land contracting operation right)through the judgment document network,sorts out the judicial status of the method,subject,method of realizing the security right,property scope and other judicial status of the land operation right financing guarantee,and combines the relevant provisions of laws,regulations and policy documents of the land operation right financing guarantee,and then summarizes the theoretical and practical dilemmas in the process of realizing the financing guarantee of the land operation right,which is mainly manifested in the unclear nature of the land operation right affecting the choice of guarantee method,the rules for the effective creation of a security right are not uniform,the traditional discount method of realizing the security right is difficult to apply,the auction sale method affects the interests of the debtor,and the order of application of ordinary and special procedures is not clear.Secondly,according to different circulation methods and circulation periods,it is explained that the land operation right is divided into property and debt,on this basis,the property right to operate the land adopts the form of mortgage guarantee,and the creditor land operation right adopts the form of pledge guarantee.The prerequisite for the realization of a financing guarantee for rural land operation rights is to clarify whether the security right is effectively established,therefore,the rules for the establishment of security rights in land operation rights are proposed in the third part,the conditions for the effective creation of non-security rights in the "contractor rules",the holders of security rights in land operation rights are limited to financial institutions,and the object of financing security is always land operation rights,these are common rules for the establishment of security rights in land operation rights.The difference between the rules for the establishment of a mortgage of land operation rights in the nature of property rights and the pledge of land operation rights in the nature of creditors is manifested in the scope of the object of security and the rules for changes in property rights.Finally,in terms of the realization mechanism of the security right in the land operation right,firstly,the innovative ways of realizing mortgage rights explored in the pilot areas,such as trusteeship,transfer,collective repurchase,etc.,are analyzed,and the traditional security rights realization methods of auction and sale are proposed to flexibly use;The second is to propose the construction of a compulsory management system to efficiently realize the security right of land operation rights,and establish the content of the compulsory management system by analyzing the legislative status and institutional advantages of compulsory management,such as the initiation and termination of compulsory management procedures,administrator rules,etc.,and clarify the applicable rules for the implementation of compulsory management in terms of procedures.The third is to clarify the order of application of ordinary procedures and special procedures for security rights in land operation rights according to whether substantive rights are disputed.By combing through the views of the whole text,the author designs the provisions of the land operation right financing guarantee measures in the conclusion part,with a view to improving the land operation right financing guarantee system and better guiding judicial practice.