土地经营权信托设立的理论构建——以“三权分置”为背景

Theoretical Construction of the Establishment of Land Management Right Trust:Taking the Right Division as Bakground

"三权分置"背景下,农村土地信托以土地经营权为信托财产,以《信托法》为设立准则。《信托法》对信托的涵义、性质、财产归属界定不清引致我国信托设立制度存在诸多不妥,应对《信托法》第二条、第八条作出修正,重新明确信托是兼具物权性质和债权性质的法律关系。基于此,土地经营权信托设立由信托合同、土地经营权设立登记、信托登记三部分构成。土地经营权信托合同和土地经营权设立登记同时有效成立时信托关系成立,土地经营权信托登记完成时信托生效。

On the background of right division,rural land trust means treating the land management right as trust property and taking the Trust Law as the norms. Since the meaning,nature and property ownership of the Trust Law are not clearly defined,there are many defects in our system of trust establishment. Therefore,the article 2 and 8 of the Trust Law should been revised,that is,re-clarifying the meaning of trust is the legal relationship of the combination of real right character and creditor right character. Based on this concept,the establishment of land management right trust should be mainly formed by three parts： the trust agreement,the establishment registration of land management right,the registration of trust. The relationship of trust will be established when the agreement of land management right trust and the establishment registration of land management right are all formed. The trust will be established when the trust registration of land management right is formed.