农村宅基地抵押试点的法律观察

Legal Observation on Experiment of Homestead Mortgage in the Countryside

现行农民宅基地使用权抵押试点分别以财产流转性收益和农村金融市场扩展为抵押主题,采取农民房屋所有权并附属宅基地使用权抵押和宅基地使用权直接抵押两种模式及多种类型。试点宅基地使用权抵押融资存在抵押权合法性、抵押物处置效力的法律风险。宅基地使用权抵押应遵循合法性途径,完善抵押登记制度,宅基地使用权转让应市场化运作,其受让后的宅基地使用权期限可界定为30年为宜。

The current experiments on the mortgage of farmers＇ right to use homestead are carried out in various forms based on two experimental models, that is, mortgage of farmers＇ right to use their houses as well as homestead and the mortgage of farmers＇ right to use homestead only, according to the mortgage themes of property transfer income and rural financial market expansion respectively. In the financing for the mortgage of farmers＇ right to use homestead, there exist some legal risks including risks in legitimacy of mortgage right and effectiveness of the disposal of mortgaged property. The author thinks that mortgage of farmers＇ right to use homestead should be legal, the mortgage registration system should be optimized, the transfer of the right to use homestead should be market-oriented and it is advisable that the validity period for transferees to use homestead lawfully should be 30 years from the date of transfer.