土地经营权入股立法的反思与展望

The Legislation on Using Land Management Right to Obtain Shar e Ownership:Reflections and Prospects

自家庭联产承包责任制实施以来,关于农村土地承包经营权能否以入股等方式流转,在政策与法律层面经历了比较复杂的变迁过程。土地经营权入股在立法中得到确认是“三权分置”改革的重要成果之一,有利于在流转中更好地实现土地经营权的价值。土地经营权入股现行立法表达不规范、不统一,且与相关法律规定存在冲突,导致立法预期的实现受阻。以立法的基本原理来审视,立法用语不规范只是表面现象,土地经营权的性质不明才是立法困境的根源,对入股所致不利后果的担忧则进一步导致适用难题。实践中大量存在的“以租代转”、“名为入股、实为出租”现象表明,既有立法并不能有效满足土地经营权入股的需求,反而徒增解释与适用的混乱。为了弥合土地经营权入股的认知分歧,保持相关立法之间的协调,实现“三权分置”的立法目的,有必要在立法中统一相关表述,明确规定土地经营权的性质,移除土地经营权承载的不必要负担,让土地经营权真正成为“可以用货币估价并可以依法转让的非货币财产”,进而以“作价出资”取代“入股”。

Since the household contract responsibility system with remuneration linked to output came into being,the issue of whether the contractual management rights of rural land can be transferred in the form of obtaining share ownership has experienced a complex process of transformation at both levels of policy and law.The confirmation of using land management right to obtain share ownership in the legislation is one of the important reform achievements of"separating rural land ownership,contractual right,and management right",thus helping the value realization of land management rights during the process of transfer.Nevertheless,the current legislative expressions on using land management right to obtain share ownership lack standardization and unification,and have some conflicts with relevant legal provisions,frustrating the legislative goals.From the perspective of basic legislative principles,the legal language being not normative is only the superficial phenomenon,and the nature of land management rights being unclear is the root source of legislative predicament,and worries about the harmful outcomes of obtaining share ownership further lead to difficulties in legal application.The large quantity of exiting phenomena of"using lease to replace the transfer"and"being in the name of obtaining share ownership but being in fact lease"in practice shows that the existing legislation cannot effectively meet the need of using land management rights to obtain share ownership but increases confusion in interpretation and application.In order to bridge the gap between different understanding of using land management rights to obtain share ownership,keep coordination between relevant laws and realize the legislative goals of"separating rural land ownership,contractual right,and management right",it is necessary to unify relevant legislative expressions,clarify the nature of land management rights,remove the unnecessary burdens on land management rights,thus making the land management rights become"non-monetary property valuable in terms of money and legally transferable"and then replacing"obtaining share ownership"with"capital contribution in terms of money".