“三权分置”背景下 土地经营权生成机制研究

Abstract

In the past, the promotion of the “separation of three rights” of land contractualmanagement right was mainly reflected in the national policy level. Since the“opinions on comprehensively deepening rural reform and accelerating agriculturalmodernization” first put forward the idea of “separation of three rights” in the formof a central document, the idea of “separation of three rights” has also been reflectedin other national policy documents. Article 9 of the law of the people’s Republic ofChina on rural land contract divides the right of land contract and management intothe right of land contract and the right of land management for the first time, andstipulates in Article 10 that the right of land management is protected according tolaw, which means that the “separation of three rights” has initially realized thetransformation from national policies to legal norms. The newly revised “rural landcontract law” has a vague legal position on the right of land management, and it isan unavoidable problem to define the nature of the right of land management. In thecontext of “separation of three rights”, how to deconstruct this new right will directlyaffect the construction of the new farmland right system and the success of thewhole farmland legal reform. The academic debate on the nature of land management right mainly existsbetween “property right theory” and “creditor’s right theory”. The main content of“property right theory” is to try to include the concept of secondary usufructuaryland contractual management right. “Creditor’s right theory” holds that the originalcontractual management right owner’s land rights to a third person should belong to “creditor’s right to use”. Combined with the problems of limited circulation of ruralland, low operating efficiency and insufficient protection of farmers’ rights andinterests in practice, it is more reasonable to define the land management right as theusufruct with the content of agricultural operation. Based on the analysis of thestructure of real right generation system, this paper takes the standardization of legalinterpretation as the basic requirement to explain the different application of specificlegal language in different situations and the necessity of the expansion of real right. Finally, it provides feasible suggestions to improve the land management rightsystem.