土地承包经营权“转包”与“出租”流变考

On “Subcontract” and “Lease” of the Right to Operate Contracted Land

从土地承包经营权流转规范史来看,土地承包经营权"转包"是为了突破《宪法》及土地管理规范关于土地使用权"出租"的禁止性规定而创设的。创设初期,为了避免法律冲突,相关规范不得不采取允许"转包"而禁止"出租"的路径。土地使用权"出租"解禁后,土地承包经营权流转也日益活跃,相关规范转而承认并允许土地承包经营权"转包"与"出租"并存。此外,《农村土地承包经营权流转管理办法》对于"转包"与"出租"的区别界定在"转包"创设时并不存在。因此,土地承包经营权的"转包"与"出租"并无本质区别,不宜在法律中并存规范。鉴于"转包"或者"出租"仅产生债法上的效果,其形式与内容自由,未来民法典中无需特意规范。

Viewing the history of the legal norms of circulation of the right to operate contracted land, the ＂ subcontract＂ of which is created to break through the leasing prohibition of the rural land contracted management right from Constitution and the land ad- ministrative regulations. At the beginning of the creation, in order to avoid legal conflicts, the relevant norms had to be allowed to ＂subcontract＂ and prohibit ＂lease＂. After the lifting of the ban o{ ＂lease＂, the circulation of the right to operate contracted land becoming increas- ingly active, the relevant norms change to admit and allow the ＂subcontract＂ and ＂lease＂ of the rural land contracted management right to coexist. In addition, in the Measures for the Administration of Circulation of Rural Land Contracted Management Right, the different def- inition of ＂subcontract＂ and ＂lease＂ does not exist when the ＂subcontract＂ is created. There- {ore, there is no essential difference between the ＂ subcontract＂ and ＂lease＂ of the right to operate contracted land and the coexistence of those should be avoided in the legal norms. In view of the fact that ＂ subcontracting＂ or ＂lease＂ only produces contractual effect and the form and content of which is free, the Civil Code does not need to specifically regulate it.