土地经营权入股法律问题研究

A Study on the Legal Issues of Paying for Capital Stock by Usufruct on Land

2018年7月1日全国人民代表大会审议通过的新修订《中华人民共和国农民专业合作社法》、2019年1月1日全国人民代表大会审议通过的新修订《中华人民共和国农村土地承包法》和2020年5月全国人民代表大会审议通过《民法典》的物权编,三部法律的正式实施和修订标志着农地权利"三权分置"政策已经向实定法予以转化,赋予了土地经营权以及土地经营权入股的合法性地位。然而,当前关于土地经营权入股法律存在权利性质相对模糊、权利义务、履行程序等内容尚未明确等困境,直接导致土地经营权主体、客体、对象和相关规则框架设计法理根基不足,影响了制度供给效率、质量以及土地经营权入股法律的缺位。因此,本文深入分析我国当前土地经营权入股困境着手,把准症结所在,对土地经营权入股主体、客体和入股对象等内容予以分析,进而对土地经营权入股出资机制、评估作价机制、利益分配机制和退出机制等运行机制入手建议完善土地经营权入股相关法律。

After the Third Plenary Session of the 18 th CPC Central Committee,with President Xi Jinping as its core,the CPC Central Committee put forward a series of reform guidelines and policies and started a new round of rural land rights system reform with separation of three rights from the overall perspective of reform and development.Its purpose is to stabilize and improve the fundamental rural land operation system for further reform of the rural land system and revitalization of the countryside.As the main way to accelerate the circulation of rural rights,paying for capital stock by land usufruct can effectively promote the establishment of the modern propertyoriented rural land rights system,advance the reasonable allocation of rural land production factors,and fill the gaps in the formulation of relevant legal rules.With the newly revised Law of the People’s Republic of China on Farmers’Professional Cooperatives,the newly revised Law of the People’s Republic of China on the Contracting of Rural Land and the Real Rights Part in Civil Code deliberated and approved by the National People’s Congress respectively on July 1,2018,January 1,2019 and in May 2020,the formal implementation and revision of the above three laws signify that the policy of"separation of three rights"of rural land rights has been transformed into a positive law,giving legal status to the right of rural land management and paying for capital stock by land usufruct.However,the law of paying for capital stock by land usufruct is faced with such dilemmas that the nature of its rights is relatively vague,its rights and obligations as well as the performance of the procedure are not clear,which directly leads to the lack of legal foundations for the subject,object,target and the design of related rules and frameworks.In result,it affects the efficacy and quality of institutional supply and the legal absence for paying for capital stock by land usufruct.Therefore,it is necessary to further analyze those dilemmas mentioned above.To find the key to the problems,we need to analyze the subject,object and the target of paying for capital stock by land usufruct so that we can gradually formulate the laws related to it by initiating the four operational mechanisms including the contribution mechanism,the appraisement mechanism,the mechanism of profit distribution and the mechanism for exit.