农地信托中信托财产性质及归属谜题:困局与出路

Nature and Ownership of Trust Property of Rural Land Trust Mechanism in China:Predicament and Outway

农地信托中信托财产的性质为何,农地信托设定后信托财产所有权是否发生变动,已困扰我国学界多年。目前既有的承包权—权利转移说、承包权—权利不转移说、租赁权—权利转移说等多种学说均未能完美解决农地信托的理论谜题。农地"三权分置"政策的提出,为解决上述谜题提供了新的机遇。将农地信托中信托财产界定为农地经营权,并将这项权利配置为"高度物权化的债权",有利于彻底解决农地信托的理论谜题。

What the nature of trust property of rural land trust mechanism is, and whether ownership of trust property undergoes change or not after rural land trust mechanism is set up, this two issues have bothered Chinese academic circles for many years. Existing theories, such as the theories of the change of contracting right/real right, untransfer of contracting right/real right, and transfer of leasehold right/creditor＇s right, have not completely solved the two theoretical issues. However, proposal of the policy -- ＂separation of the three rights＂ -- brings about a new opportunity. To define trust property of rural land trust mechanism as management right of rural land and to configure the right as ＂a creditor＇s right with an obvious tendency of real right＂ is beneficial to solve the theoretical issues.