也谈农村土地承包经营权的继承问题——兼与刘保玉教授商榷

Also on Inheritance of the Right to the Contracted Management of Rural Land——A Discussion with Professor LIU Bao-yu

土地承包经营权为用益物权,是农民应得的重要财产,家庭土地承包经营权也不具有人身专属性,可以成为遗产。土地承包经营权作为用益物权,具有流通性。完全放开家庭土地承包经营权的流转是改革的趋势,限制家庭土地承包经营权的流转和否认其可继承性不符合改革发展和保护农民权益的要求。规定林地承包经营权可以继承具有合理性,各类土地承包经营权应有同样的待遇,因此,应当确认土地承包经营权的可继承性,而不是禁止包括林地承包经营权在内的家庭土地承包经营权的继承。

The right to the contracted management of land with the nature of real right for usufruct is farm- ers＇ major property. The household＇ s right to the contracted management of land is not a personal exclusive right, thus such right can be inherited and transferable in market. It is the trend of reform to make the right to the contracted management of land completely transferrable, thus any limitation and denial of such right is in- compatible with the development of reform and requirements to protect farmers＇ legitimate interests. Besides, it is justifiable to permit the inheritance of the right to contracted management of woodlands since all types of land deserve the same treatment. Therefore, it is suggested to specify the right to contracted management of land to be inheritable rather than to forbid the inheritance of the right to contracted management of woodlands or other household＇ s right to contracted management of land.