“三權分置”論的法律邏輯、政策闡釋及制度替代

Legal Logic, Policy Explanation and System Replacement of the 'The Three Rights Separation' Theory

承包權與經營權分置，建立所有權、承包權、經營權“三權分置”的農地權利體系，既有理論辯護，又有實踐運作，更有政策支持，似乎成為不證自明的公理。但“分置論”面臨諸多困境：法律邏輯顛倒了，政策闡釋有疑問，實踐中也引發了不少問題。其根源是：試圖將土地保障功能和財產功能、價值上的公平和效率理念都設置於土地承包經營權制度，不同程度地忽視集體土地所有權的制度功能。改革方向是，通過整體性思維，重新審視和構建農地權利體系不同制度間的功能設計和相互協助。具體做法是，完善土地承包經營權物權性質的權能，使之成為真正的財產性權利；在集體土地所有權框架下充實成員權應有屬性，使之成為可靠的保障性基礎；同時積極跟進配套保障制度。

It seems to be a self-evident axiom that the rights system of rural land has been separated into ownership, the contractual rights of land and the management rights of land which have both defense theory and practical in practice. But there are many difficulties as follows: the legal logic has been reversed, the policy intention is questionable and causes many problems in practice. The reason for the protetion on the land and property functions, fairness and efficiency values are set entirely on land contract and management rights, and varying degrees of neglect of collective land ownership system function. The reform is to examine and construct the functional division and mutual assistance among different systems of the rights of rural land through the history. The concrete practice is to perfect the usufruct of the contract management rights of land and make it a real property right; the membership rights should be enriched under the framework of the ownership of collective land and make it a reliable guarantee of the foundation, while actively following up the relevant supporting system.