土地改革之“三权分置”入法及其实现障碍的解除—评《农村土地承包法修正案》
The Reform Policy of Farmland “Separation of Powers” Written into Law and Its Relieving Obstacles in Enforcement
-
摘要: 农地“三权分置”政策入法关涉《农村土地承包法》修正和民法典物权编之编纂,已完成大修的《农村土地承包法》有其亮点,但对其与民法典物权编的关系尚未妥当处理,立法者在法律规则设计中亦没能体悟透彻政策意蕴。其制度设计有违在立法中的规范作用,混淆民法物债二分的基本原理,忽视法体系化与协调适用的要求,对乡村重要实际问题的系统解决态度有轻怠之嫌。落实农地“三权分置”政策的应然立法路向及其解释是:与“落实集体所有权”精神有效衔接,重申并进一步确立土地承包经营权的科学地位,精确界定土地经营权的内容和性质,为农地规模经营亟需的金融担保提供法治的正当性的支持。
-
关键词:
- 农地“三权分置”政策 /
- 农村土地承包法 /
- 土地承包经营权 /
- 土地承包权 /
- 土地经营权
Abstract: The policy of farmland ' separation of powers” written in to law is related to the amendment of The Law of Rural Land-Contracting, as well as the compiling of the chapter of real right in civil code. But the relationship between the second text of Amendment of Rural Land-Contracting Law and the chapter of real right in civil code has not been properly settled, and the law-makers have not thoroughly understand the meaning of the policy in their designing of laws and regulations. The designing of the system in the said text is not conforming to the norm in making law. The basic principles of the dichotomy of substance and debt in civil code are mixed up, the system of law and the requirements of coordination are neglected, and the attitude for systematical solving the practical key problems in rural areas is less emphasized. The route of law-making for ' separation of powers” policy of farmland is an effective connection to the essence of ' realizing collective ownership”. It is important to re-emphasize and further establish the status of land-contracting management right, to define exactly the content and nature of the land management right, and to provide lawful support for financial guarantee urgently-needed in large-scope farmland-operating. -

计量
- 文章访问数: 2794
- HTML全文浏览量: 256