土地承包经营权的设立与登记

The Establishment of Contractual Operation Right of Land and Registration

《物权法》颁布后,我国独特的物权变动立法模式正式确立。《物权法》也首次不区分土地承包经营权的种类而统一规定——在承包合同生效时土地承包经营权设立,这样使得土地承包经营权的物权变动具有特殊之处。通过比较的分析方法发现,由于两种土地承包经营权有着天然的不同之处,其设立的情况也有所不同,所以法律还是需要根据不同的土地承包经营权类型进行不同的法律调整。另外土地承包经营权设立登记的效力在学界也存在着争议,通过案例分析,主张法律应规定赋予土地承包经营权设立登记对抗的效力,同时也应完善细化土地承包经营权的异议登记制度。

After the promulgation of ＂Property Law＂, the unique pattem of property fights changes in china is formally established. It is also the first time that ＂Property law＂ dose not distinguish between two different kinds of contractual operation fight of land when it provisions of a unified rule that contractual operation fight of land would not be established until the contract become effective, it makes contractual operation fight of land as a speeial ease of real property fight changes. However, comparing the two different kinds of contractual operation fight of land, the writer finds that there are natural differences between the two kinds of contractual operation fight of land and they were set up differently, so different adjustments of law are in need. In addition the effectiveness of a registration of establishment to contractual operation fight of land also exist in the academic controversy, through the eases analysis, the law should give registration effectiveness to the establishment of contractual operation fight of land to against others, should also be refined to improve a system for the objection registration to contractual operation fight of land.