論農用地“三權分置”中經營權的法律性質

On the Legal Nature of Managerial Right in the Separation of Agricultural Land Three Rights

農用地所有權、承包權、經營權“三權分置”是我國農用地未來制度構造的主導思路。經營權法律性質的合理定位又是“三權分置”制度構造的關鍵。確權確地形成之土地承包經營權分離出的經營權用益物權論，無論是主要理據還是制度設計均值商榷；而經營權債權論既能契合經營權存在的語境、實現經營權分離的目的，又可避免多層用益物權權利結構之弊。確權確股不確地之土地承包方式創新視閾下分離出的經營權，則存在物權化的合理空間；確權確地形成之土地承包經營權入股農村集體經濟組織，不僅是農用地承包方式由確權確地向確權確股不確地轉換的適宜通道，而且可成為確權確地之經營權物權化的改造路徑。

The separation of three rights (collective ownership, contractual right and managerial right) is the leading idea on Chinese future agricultural land system. The legal nature of managerial right is the key to establish the separation of three rights, and scholars are debating that managerial right is usufructuary right or creditor's right. When managerial right is separated from the land contracted management right formed through confirming right and space, if it is considered as usufructuary right, it is questionable regardless of the main reasons or system design; if managerial right is considered as creditor's right, it can match its developing context, realize its separation goal and avoid the shortcoming originating from the multi-layer usufructuary right structure. When managerial right is separated from the land contracted management right formed through confirming right and share but not confirming space, it is reasonably considered as usufructuary right. Investing the land contracted management right formed through confirming right and space into the countryside collective economy organization, is not only the suitable channel that land contracted form transforms from confirming right and space into confirming right and share but not confirming space, but also the path through which managerial right is reformed into usufructuary right.