農地三權分置視野下土地承包權的重構

On Contract Right of Rural Land under the View of“'Three-Right Separation' of Rural Land

農地三權分置的經濟改革思想在法律上應體現為以下結構：集體在農村土地所有權之上為農戶設定土地承包經營權，承包農戶在其土地承包經營權之上為其他經營主體設定土地經營權。“土地承包權”這一政策術語實際上就是我國實定法上的土地承包經營權，但在三權分置之下，土地承包權帶有明顯的身份屬性，只有本集體成員才能取得，而土地承包經營權一語還涵蓋了以其他承包方式取得的市場化土地利用權，實有重構的必要。穩定土地承包關係並保持長久不變，在法律上應使土地承包經營權有較長期間，並借由登記制度將土地承包經營權落實至本集體的每個農戶。在完善土地承包權權能的政策導向之下，修改現行法時應明確承包農戶就其土地承包權的出租、入股、轉讓、抵押等處分權能。

The 'Three-Right Separation' of rural land should be reflected in the following structure in the law: on the ownership of rural land, the collective sets up the right to the contracted management of land for farmers and the farmers set up the management rights of land for other business entities on the right to the contracted management of land. The policy term 'Contract Right of Rural Land' actually is the right to the contracted management of land in our laws. But under the 'Three-Right Separation' of rural land, contract right of rural land is obviously with identity attribute, available only for the farmers of the collective. Whereas, the right to the contracted management of land includes the land use rights acquired by other contracting methods. A reconstruction is inevitable. To stabilize and maintain the land contracting relationship means that the land contract management rights should have a longer period in the law, and make sure the right to the contracted management of land belongs to the farmers of the collective by the registration of real estate. Under the policy guidance of improving the power of land contracting rights, when revising the existing law, it shall make clear that the contracting farmers can use dispose the contract right of rural land for such as lease, share, transfer and mortgage and so on.