论“三权分置”下土地经营权的性质——以《农村土地承包法修正案(草案)》为中心

A Paper on the Nature of Land Operation Right under the "Separation of Three Rights"——Centered on the Amendments to the Rural Land Contract Law(draft)

随着越来越多的农民离开土地进城务工,农村土地承包主体与经营主体日益发生分离;促进农地流转,发展适度规模经营的现代化农业;解决土地承包经营权承载过多的制度功能的问题,更好地发挥农村土地的经济功能。这些因素是"三权分置"政策出台的动因。落实"三权分置"政策重点在于放活土地经营权,政策目标是赋予经营主体更稳定、更有保障的土地经营权。土地经营权的性质不应界定为农地使用权和用益物权,而应界定为可以进行登记的债权。

As more and more farmers leave their land to work in the city,rural land contractors and operators have been increasingly separated.It is in urgent need to promote rural land circulation and develop the agriculture of moderate scale operation.In order to solve the problem of excessive institutional function of contractual operation right of land and better achieve the economic function of rural land,the policy “separation of three rights on rural land” has been made.The fulfillment of the policy should focus on the releasing of the land operation right and aim to give the land operator a more stable and secure land operation right.Moreover, the nature of the land operation rights should be defined as creditors’ rights to be registered instead of the right to use rural land or the usufructuary right.The nature of land operation rights should not be defined as the right to use rural land,nor should it be defined as usufructuary right,it should be defined as creditor’s right.