土地承包经营权抵押范围的再探索

Rethinking the Mortgage Boundary of the Contractual Management Right of Rural Land

改革开放三十多年后,随着社会的发展与变化,已凸显出现行法律对土地承包经营权的可抵押范围限制并不合理。由于农村的社会结构与实际需求改变,土地的社会保障功能日渐弱化;通过法律的设计,土地承包经营权抵押权的实现得与耕地面积的增减不发生直接关系。考虑到我国各区域间的重大经济差异等原因,法律应有条件地放宽得抵押融资的土地承包经营权范围,以解决农民的实际需要。

The article is aimed to investigate, by means of case analysis, the unreasonable restrictions in the current legal system on the scope of mortgage with regard to the right of contractual management of rural land. Apart from examining the technical questions relevant to legal provisions, the article also points out that owing to changes in social structure and real needs in rural villages, function of farmlands as a means of social security has been weakened. Consequently, there is no direct causal relationship between the design of the size of agrarian land and the outcome of implementing the mortgage of the contractual management right of rural land. Furthermore, given the great regional differences in economic development, legal provisions should, under certain conditions, broaden the scope of mortgage with regard to the right of contractual management of rural land.