“三权分置”背景下农地抵押的规则设计

The Regulation Design on Agricultural Land Mortgage within Three Rights Division

“三权分置”改革的背景下，土地承包经营权的财产属性更加凸显，这有助于促进农地自由流转，彰显其经济价值，推动农村社会发展。可以设定抵押的农地权利包括土地承包经营权和土地经营权，抵押权的效力及于扣押时尚未分离的农作物，以及土地被征收时抵押人所获得的土地补偿费。土地承包经营权的抵押人只限于为自己的债务设定抵押，而抵押权人则不受身份的限制。从公示及安全的价值考量，农地抵押权需要登记才能设立。对于农地抵押权的实现方式，法律所作的规定只是为当事人提供选择方案，并不具有强制性约束力。

Under the background of the reform of three rights division, the asset nature of the fight to land contract management is more prominent thus conducive to promoting free circulation, highlighting its value and promoting rural economic development. The right to the contracted management of land and land management right can be used to mortgage. When the farm land is seized, crops not yet separated at the time of seizure is the estate under mortgage, and it is the same to land compensation fees gained by the mortgagor after the land has been levied. The mortgagee of the land contracting right is limited to the mort- gage for his own debt, while the mortgagee is not restricted. From the value of publicity and safety, agricultural land mortgage needs to be registered before it can be established. As for the realization method of agri- cultural land mortgage right, the provisions of the law are only options for the parties and not binding in a mandatory way.