从农村土地承包法到民法典物权编:“三权分置”法律表达的完善

"三权分置"在农村土地承包法上获得了法律表达,但在纳入民法典物权编时,仍需进一步完善。土地经营权是设立在土地承包经营权之上的新型次级用益物权,以权利用益物权作为法理支撑,与土地承包经营权之间没有物权排他性上的冲突。作为物权的土地经营权,转让和设立担保时不需承包方同意。以土地经营权为客体的担保方式是不动产抵押。

From Law of the People’s Republic of China on the Contracting of Rural Land to the Real Right Part of the Civil Code: Improvement of the Legal Expression of “Separation of Three Rights”

The "three rights separation" has gained legal expression in Law of the People’s Republic of China on the Contracting of Rural Land, but it still needs to be further improved when it is incorporated into the civil rights code. The land management right is a new type of secondary usufructuary property right established on top of the right to land contractual management. It takes the right usufructuary property right as the legal support, and there is no exclusive conflict of real right with the right to land contractual management. The land management right, which is a real right, does not require the consent of the contractor when transferring and establishing a security. The guaranty method which using the land management right as the object is the real estate mortgage.