土地經營權債權定性之解釋論

Interpretation of Characterizing the Land Management Right as Creditor's Right

土地經營權寫入《民法典》後，解釋論是對其定性的基本定位，以便理解其權利構造及推進制度適用。以期限長短（五年為界）、登記與否定性土地經營權缺乏法理基礎和規範支撑。經由文義、體系與法目的解釋的通盤思考，應將它定性為債權而非物權。就法文義而言，《民法典》第339條和《農村土地承包法》第36條是它定性成債權的規範依據，確立其基於土地承包經營權之出租、入股等債權性流轉形式而産生，而承包經營權的互換、轉讓並未生成新的土地經營權，只是引起用益物權的整體性變動。就法體系而言，土地經營權再流轉及融資擔保需經“承包方書面同意”的法限制，可佐證它的債權定性。《民法典》中也不存在土地經營權定性為用益物權的母權基礎。就法目的而言，“保持農村承包經營關係穩定”决定了承包地法制改革不應改變土地承包經營權的權利稱謂和用益物權屬性，也意味著無法把土地經營權納入用益物權範疇，避免與一物一權原則相悖。它的債權定性將對其設立模式、規則構造、對抗性和融資擔保等産生體系效應。

After the land management right has been stipulated in the Civil Code, the interpretation theory of it should be the basic positioning of its legal nature, so as to understand the right structure and promote the application of the system. There is a lack of legal basis and legal support to define the land management right based on the length of period (five years as the boundary), registered or not. The legal nature of the land management right should be defined as the creditor's right (not property right) after a comprehensive consideration of the interpretation of the text, system and purpose of the law. As far as the text is concerned, Article 339 of the Civil Code and Article 36 of the Law on the Contracting of Rural Land are the legal basis for the characterization of the land management right as creditor's right. These two legal provisions establish that the land management right is based on creditor's forms of transfer, such as the lease of the land contractual management right or the acquisition of shares. The exchange or transfer of the land contractual management right does not create a new land management right, but only gives rise to a change in this right to usufruct as a whole (Article 334 of the Civil Code). As far as the legal system is concerned, the legal restriction that 'the written consent of the contractor' is required for the retransfer of the land management right and the guarantee of financing (Articles 46 and 47 of the Law on the Contracting of Rural Land), could support its creditor's right characterization. There is also no parent right basis for the characterization of the land management right as a right to usufruct in the Civil Code. As far as the purpose of the law is concerned, the provision of 'maintaining the stability of rural contractual management relations' determines that the legal reform of contracted land should not change the title of the land contractual management right (which should not be replaced by 'the land management right') and the attribute of a right to usufruct. It also means that it is impossible to characterize the land management right as a right to usufruct to avoid contradicting the principle of One Thing, One Right. The characterization of creditor's right on the land management right will have a systemic effect on the following legal interpretations: the mode of creation of rights, the construction of legal rules (subject, object, content, mode of acquisition, the transfer of the right and the relief of the right), antagonism and financing guarantees.