土地经营权之源流:从本质到变动

The Origin of Land Operating Rights:from Essence to Change

2020年《中华人民共和国民法典》的颁布宣告着土地经营权正式进入物权编的体系之中。但鉴于当下定义的不清晰、体系的不明确,土地经营权存在的问题仍芜杂纷乱,学者于斯各执一词,难下定论。实际上,根据对债权说、二元体系说的批判立证,应当强调土地经营权的用益物权属性。自我国建立起现代社会的物权体系之日起,多层级用益物权体系便可通过对权利适当的弹性化而得以成为可能,以土地承包经营权为枢纽的三重权利架构即为其著例。而于土地经营权的设立与移转方面,即使全然贯彻登记规则难度甚巨,但仍应以用益型利用方式与变价型利用方式对其加以区分。

The promulgation of the "Civil Code of the People’s Republic of China" in 2020 announced that land operating rights have officially entered the system of property rights compilation. However, in view of the current unclear definition and unclear system, the arrangement of land operating rights are still in mess, and it is difficult for the scholars to make their own conclusions. In fact, according to the criticism of the theory of creditor’s rights and the dual system theory, the usufructuary attribute of land operating rights should be emphasized. Since the establishment of a modern society’s real right system in China, a multi-level usufructuary system can be made possible through appropriate flexibility of rights. The triple rights structure with land contractual operating rights as the hub is the example. Regarding the establishment and transfer of land operating rights, it is very difficult to fully implement the registration rules, but it should still be distinguished between usufruct use and variable-price use.