Mortgage of Rural Land Management Right: Don't Run Away rashly

Recently, the media have often reported that pilot projects of land management rights mortgage have been carried out in various places, and some places are also very proud of this kind of "early and pilot". However, the author takes a deep sweat for these measures: the hasty action before the amendment of the law or the formal authorization of the pilot by the competent authorities will bring obstacles to the further promotion of reform and exploration.

In November 2014, the Central Office and the State Office jointly issued the opinions on guiding the orderly transfer of Rural Land Management Rights to develop moderate scale Agriculture, which established the reform direction of the separation of rights of rural land in the form of a central document for the first time. There is no doubt that the "separation of rights" is an important theoretical and practical innovation in the reform of agricultural land system in China. It has realized the transformation of the allocation of land rights in agricultural management from "separation of two rights" of "ownership-contractual management right" to "separation of three rights" of ownership-contracting right-management right. It divides the security function and property function of the land contractual management right, and allows the contract right to continue to bear the social security responsibility of farmers, while the management right that only undertakes the property function can be loaded into the market and circulates freely. Thus, the problems of abandoned contracted land, centralized management and mortgage financing can be solved on the basis of adhering to the system of collective ownership and household contract management, so as to promote the appropriate scale operation of agriculture. Not only that, from the point of view of the risk control of farmers' transfer of contracted land, the theory of "separation of rights" divides the right of contracted management of land into the right of contracting and the right of management, and invigorates the right of management on the basis of stabilizing the right of contract. in fact, it sets up a protective barrier for farmers' contracted land transfer behavior.

However, there is still a long way to go before a reform measure is put forward by the central government and put into practice. The practice of "seizing the first opportunity" in some places will face many hidden dangers under the premise that the allocation of the three powers is not yet clear and the formal legal system is not guaranteed.

First of all, the clear legal relationship between the transfer of land management rights and mortgage is based on the clear allocation of the power of the three rights, which requires a clear definition of the allocation of the rights and powers of each property right, and their respective subjects, connotation and denotation, as well as the relationship between rights and obligations. However, the "opinions on guiding the orderly transfer of rural land management rights to develop appropriate scale operation of agriculture" the reform of the separation of rights of rural land is limited to "adhere to the collective ownership of rural land and stabilize farmers' right to contract." this kind of very principled expression, the power allocation of the three rights is not clear. The research on this issue in the theoretical and practical circles is not yet mature. Perhaps in the short term, this practice is not a big deal, but over time, once it is impossible to repay the bank loan, it is necessary to take the land management right to realize the mortgage, the dispute will not be avoided, and it will be the weak who will suffer in the vague state of property rights. and it's most likely to be farmers. In particular, the circulation of management rights is not an one-shot sale, but has a longer period, which is generally pushed out in the absence of careful institutional arrangements, which is not only easy to breed all kinds of disputes. moreover, it will also leave many remaining problems that are difficult to be solved for the formal promotion of the reform in the future, and even affect the objective evaluation and confidence in the reform of the "separation of powers" of rural land.

Secondly, the land contractual management right system stipulated in the current Rural Land contract Law and the property Law is based on the "separation of two rights" of rural land. The reform of "separation of rights" of rural land will certainly bring about the rearrangement of the right system of agricultural land. This means that this reform measure is not only inconsistent with the provisions of "Rural Land contract Law", "property Law" and "guarantee Law", but also has a major breakthrough. There is no status of "land management right" in these laws, and the natural land management right is not among the mortgaged property stipulated in the property Law and Guaranty Law. Therefore, it is obvious that there is no basis in the law to carry out the practice of mortgage of land management right without amending the law. in the event of disputes, if strictly in accordance with the provisions of the law, the mortgage can not be protected. Therefore, we can see that the practice of pilot projects in many places usually depends on the strong promotion and guarantee of the local party committees and governments, but this practice of the government is suspected of excessive intervention in the market and cannot be promoted. And once a lawsuit is brought, it is bound to embarrass the court. This also happens to be the confusion faced in the exploration of land management right mortgage in the experimental areas of Chengdu and other places a few years ago.

The reform of "separation of rights" of rural land must also be based on the law and be promoted by the rule of law. At present, there are two ways to implement this reform in the way of the rule of law: one is to authorize the pilot before legislation, and the other is to legislate directly. Under the current conditions, there are no conditions for direct revision of the law in the short term: the provisions of the rural land contract law, property law, guarantee law and other relevant rural land contract management system are established on the basis of the original "separation of two rights". The reform of "separation of rights" requires the reconstruction of the right system on agricultural land, and the power allocation of various property rights and the relationship between rights and obligations will also change greatly. This means that it is necessary to make great changes to the Rural Land contract Law, property Law and guarantee Law, which will involve many provisions scattered everywhere. However, at present, there are no conditions for such great efforts to amend these three laws: first, the current theoretical reserve is insufficient. How to establish a land rights system that adapts to the separation of "three rights" and the separation of land management rights and contracting rights, how to clarify the ownership of each property right, how to improve the power allocation of each property right, how to clearly define the rights and obligations of each property right subject, how to accurately express these property rights and rights and obligations in law, and how to integrate this innovative right system into the existing legal system? There is still a lack of systematic and in-depth research on how to prevent the risks of circulation and "promote the advantages and eliminate the disadvantages" in the allocation of power and the arrangement of the legal system, and it needs to be explored in the aspect of legislation. Second, from the perspective of legislative plans and procedures, the revision of the three "heavyweight" laws at the same time does not happen overnight. Therefore, it is more in line with the current practical choice to adopt the authorized pilot mode in the reform of the separation of powers of rural land. When enough experience is accumulated and the legislative conditions are ripe, the procedure of amending the law will be started, and then it will be promoted throughout the country.

Similarly, although the central government has made arrangements for the "three plots of land" reform of rural land, which is an important part of the rural land system reform, it has taken the lead in adopting the pilot model authorized by the standing Committee of the National people's Congress. The biggest difference between the "three pieces of land" reform of the land expropriation system, collective construction land and residential land and the "one piece of land" reform of rural land lies in that the direction of the former reform is still uncertain and needs to be explored through pilot projects; the latter reform direction is very clear, only the specific implementation rules need to be explored. Perhaps this is the reason why the "three plots of land" reform took the lead in adopting the pilot model authorized by the standing Committee of the National people's Congress, while the "one piece of land" reform was carried out on a pilot basis. The author believes that although the reform of the "separation of rights" of rural land has a clear direction, the specific operating rules still need to be explored and improved, and it does make a great breakthrough in the current "Rural Land contract Law". Under such circumstances, the pilot work will have legitimacy only if authorized decisions are made by the standing Committee of the National people's Congress, the enacting organ of these laws. Therefore, in accordance with the requirements of comprehensively promoting the rule of law, the reform of "separation of powers" of rural land can and should adopt the pilot mode authorized by the National people's Congress. Moreover, considering the relationship between rural land systems, the reform of "separation of rights" of rural land can and should be promoted together with the reform of "three plots of land". This is also conducive to promoting the systematicness, coordination and coupling among the design of various reform systems.

The "separation of powers" of rural land is a reform measure that can benefit the broad masses of farmers, but only on the basis of a clear allocation of powers and powers and advancing in an orderly manner in accordance with the law can it meet the requirements of "comprehensively promoting the rule of law". Only in this way can we truly ensure that "farmers' interests will not be damaged". Therefore, on the one hand, the transfer and mortgage of land management rights do not happen overnight, and it is neither necessary nor necessary for all localities to snatch away; on the other hand, the central government should make specific arrangements as soon as possible. through the formal "pilot authorization", we will bring the urgent reform of the "separation of rights" of rural land into the track of the rule of law.