农地管制中的财产权保障——从外部效益分享看农地激励性管制

Protection of the Estates of Farmland in the Process of Control and Management——On Incentive Control of Farmland from the Angle of Share of External Benefits

耕地抛荒现象暴露出我国现行农地管制制度中隐含的产权问题:农地农用所产生的环境生态、粮食安全等外部效益被简单地视为一种"公共利益",并理所当然地归属于社会公众所有,而政府更以此"公共利益"为由理所当然地对农户的土地使用权施以限制。此种财产权界定虽然保障了公众的需要,却忽视了农户的利益和感受;严重的利益分享不公,导致农地管制制度所应当具有的保障并促进农地外部效益供给的功能无法充分发挥,使得管制效率低下。因此,有必要在农地管制中引入激励相容的理念,在禁止规范之外建构一套合理可行的激励机制,透过法律创设农地外部效益财产权,并对此财产权及农地使用权给予明确的界定与保障,由政府代理社会大众进行必要的补偿或财产权交易,以真正达成农地保护的目的。

Farmland lying waste reveals a problem of estates arising out of the present control and management of land. The external benefits such as environmental ecology, security of grains, etc. resulting from exploitation of farmland are simply held as a “public interest” that by nature and right belongs to the public. The government even takes it for granted that the estates of farmland ought to be limited since they are public. Such a demarcation, though taking into account the public demand, ignores the interests and feelings of farmers and leads to unfair share of benefits. The result is that the protective and incentive function of the control and management institution cannot be fully performed and its efficiency is decreased. As such, it is urgent for us to introduce into farmland control the notion of incentive, ascertain the external benefit estate by law and explicitly define and protect the estates and use of farmland. The government should serve as an agent of the masses to provide necessary indemnity or engage in transactions of the estates so as to enhance the protection of farmland.