土地经营权债权定性之解释论

Interpretation of Characterizing the Land Management Right as Creditor’s Right

土地经营权写入《民法典》后,解释论是对其定性的基本定位,以便理解其权利构造及推进制度适用。以期限长短(五年为界)、登记与否定性土地经营权缺乏法理基础和规范支撑。经由文义、体系与法目的解释的通盘思考,应将它定性为债权而非物权。就法文义而言,《民法典》第339条和《农村土地承包法》第36条是它定性成债权的规范依据,确立其基于土地承包经营权之出租、入股等债权性流转形式而产生,而承包经营权的互换、转让并未生成新的土地经营权,只是引起用益物权的整体性变动。就法体系而言,土地经营权再流转及融资担保需经“承包方书面同意”的法限制,可佐证它的债权定性。《民法典》中也不存在土地经营权定性为用益物权的母权基础。就法目的而言,“保持农村承包经营关系稳定”决定了承包地法制改革不应改变土地承包经营权的权利称谓和用益物权属性,也意味着无法把土地经营权纳入用益物权范畴,避免与一物一权原则相悖。它的债权定性将对其设立模式、规则构造、对抗性和融资担保等产生体系效应。

After the land management right has been stipulated in the Civil Code,the interpretation theory of it should be the basic positioning of its legal nature,so as to understand the right structure and promote the application of the system.There is a lack of legal basis and legal support to define the land management right based on the length of period(five years as the boundary),registered or not.The legal nature of the land management right should be defined as the creditor’s right(not property right) after a comprehensive consideration of the interpretation of the text,system and purpose of the law.As far as the text is concerned,Article 339 of the Civil Code and Article 36 of the Law on the Contracting of Rural Land are the legal basis for the characterization of the land management right as creditor’s right.These two legal provisions establish that the land management right is based on creditor’s forms of transfer,such as the lease of the land contractual management right or the acquisition of shares.The exchange or transfer of the land contractual management right does not create a new land management right,but only gives rise to a change in this right to usufruct as a whole(Article 334 of the Civil Code).As far as the legal system is concerned,the legal restriction that“the written consent of the contractor”is required for the retransfer of the land management right and the guarantee of financing(Articles 46 and 47 of the Law on the Contracting of Rural Land),could support its creditor’s right characterization.There is also no parent right basis for the characterization of the land management right as a right to usufruct in the Civil Code.As far as the purpose of the law is concerned,the provision of “maintaining the stability of rural contractual management relations” determines that the legal reform of contracted land should not change the title of the land contractual management right(which should not be replaced by “the land management right”) and the attribute of a right to usufruct.It also means that it is impossible to characterize the land management right as a right to usufruct to avoid contradicting the principle of One Thing,One Right.The characterization of creditor’s right on the land management right will have a systemic effect on the following legal interpretations:the mode of creation of rights,the construction of legal rules(subject,object,content,mode of acquisition,the transfer of the right and the relief of the right),antagonism and financing guarantees.