三权分置——修订《农村土地承包法》的逻辑起点

Logical Starting Point of Amendment to Rural Land Contract Law

由于《农村土地承包法修正案(草案)》(简称《草案》)仍然沿袭现行《农村土地承包法》(简称《承包法》)的思路,依旧以"两权分离"为逻辑起点。由此,《草案》未在框架结构和权利体系实现重大突破,不能弥补《承包法》所有权主体缺位、承包权界定模糊、承包金未作规定等立法缺陷;设计的经营制度还可能引发权利主体、权利体系、经营期限和纠纷化解等方面的冲突。因此,修订《承包法》应适应"十九大"后的国情、农情变化的新情况,以现实和政策为依据,以"三权分置"为逻辑起点,强化所有权主体建设,完整表达承包权,平等保护经营权。

The promulgation of the amendment to the rural land contract law has prepared the legal documents for the implementation and promotion of the three-power separation of farmland. However, the logical starting point of the draft is still unchanged, it is aroused that conflict between the rights subject, the content, the term and the settlement of disputes. It lacks of Subject of ownership, clear definition and contract fee. The structure of the amendment does not have breakthrough, and it has not been able to make up for the lack of ownership, vague definition of the three rights. The amendment is not fit for new changes now, we should regard the separation of three rights as the logical starting point, then strengthen the ownership, complete expression of the rights to contract, and equally protect everyone.