《民法典》中两种“土地经营权”的体系构造

The Construction of Two Land Operating Right Systems in Civil Code

《民法典》规定了两种土地经营权:一种是土地承包经营权流转而设立的去除身份属性的次级用益物权,另一种是与土地承包经营权并列但无身份属性的农地用益物权。从设立规则看,两种权利所依据的权利来源虽不同,但都是直接支配农用地的权利。《民法典》没有规定土地承包经营权流转的土地经营权再流转的条件,只在第342条规定了其他方式承包的土地经营权流转的条件,需要适用《农村土地承包法》规定的再流转的条件,再流转的限制条件会影响到物权变动的后果。两种土地经营权设定的担保物权均属于抵押权,公示的效力分别为登记对抗和登记生效。

In the Civil Code there are two types of the land operating rights.One is based on the circulation of the conventional usufruct on rural land for agriculture operations,which is the secondary usufruct with identity attribute removed.The other is juxtaposed with the conventional usufruct on rural land for agriculture operations,which is the agriculturalland usufruct without identity attribute.From the rules of the establishment,these two kinds of right are based on different sources,but both are the right of the direct control over agricultural land.There is no provision for the recirculation of the land operating right in the Civil Code,and it only stipulates the conditions for the circulation contracted by other means in article 342.It is necessary to apply the conditions for the recirculation in accordance with the provisions of laws on the contracting of rural land.This will influence the effect of real right change.The security interests created by these two kinds of right are both included in mortgage,and the effect of demonstration respectively are registration confrontation and registration validity.