土地承包经营权抵押可行性探究

The Feasible Study on the Land Contract of Managerial Expertise

我国立法禁止土地承包经营权抵押。只是在《担保法》中规定,抵押人依法承包并经发包方同意抵押的荒山、荒沟、荒丘、荒滩等荒地的土地使用权可以抵押。笔者主张,为可持续发展农村经济,促进土地资源的充分利用,我国立法应当允许土地承包经营权抵押。以目前《物权法》的制订为契机,以我国农村土地使用现状为背景,借鉴国外及我国台湾地区永佃权相关理论与实践,从社会政策以及法理考量土地承包经营权抵押的可行性,并在此基础上探讨土地承包经营权抵押的实现,以期为将来相关立法提供现实设计,推进我国担保法研究。

The legislation in China prohibits a mortgage of the land contract of managerial. In the Guarantee Law, it stipulates that a mortgager can make a contract according to the law and can not get a mortgage until the person giving out a contract for a project agrees with mortgaging the right to use the wastelands such as barren hills, barren gullies, barren hillocks, deserted beaches, etc. The author advocates that the legislation should allow a mortgage of the land contract of managerial for the sustainable development and promoting the full utilization of the land resource. The article is on the basis of the law of the right to processing things. The recent condition in our Chinese rural land is the passage's background. The writer uses the real law and practice of other countries and the right of permanent tenants in Taiwan for reference. Meanwhile the feasibility in the mortgage of the land contract of managerial is investigated in view of the social policy and the legal principle. In accordance with the above ,the author states the possibility of realizing a mortgage of the land contract of managerial, and looks forward to a realistic design for the future legislation and bringing about a great advance in our research of the guarantee law.