“三权分置”下农地流转的私法表达

Private Law Expression of Rural Land Transfer in the Context of “The Separation of Three Rights”

“三权分置”下农地流转的理论困境在于债权与物权两种制度难以衔接。权利行使理论以动态的视角解释土地经营权的生成逻辑,即土地承包经营权人和土地经营权人系通过法律行为实现“直接占有-间接占有”关系。依照交易的不同需求,土地经营权可为便利、隐秘的债权,亦可为安全、优先的物权。以5年的流转期限区分作为债权的土地经营权和作为物权的土地经营权,是物权法定之下兼顾农户与经营者利益的立法。土地经营权物权性流转所产生的租赁费用应当予以登记,融资担保产生的土地经营权应在担保实现之后再予以登记。

The purpose of this paper is to provide a rational explanation for the transfer of real right of the land management right in the context of “The Separation of Three Rights”.The theoretical dilemma of agricultural land transfer is that the two systems of creditor’s rights and property rights are difficult to converge.The theory of the exercise of rights explains the logic of how the land management rights generate from a dynamic perspective,that is,the person having the right to contract for management of land and the person having the right to manage the land establish the “direct possession-indirect possession” relationship through legal act.According to the different needs of the transaction,the land management right can be a convenient and secret creditor’s right,or it can be a safe and priority property right.Adopt the five-year period as the criterion to distinguish different natures of the land management is a legislation which is in line with legal theory that takes into account the interests of farmers and operators under Numerus Clausus Principle.The lease expenses arising from the transfer of the land management rights for more than five years shall be registrable.The land management rights arising from the financing guarantee shall be registered after the implementation of the guarantee.