“三权分置”下土地经营权的物权塑造

农村土地"三权分置"的目标是构建新型农业经营体系,发展适度规模经营。为此,须对土地经营权进行物权塑造。其途径是在土地承包经营权之上,通过合同与登记创设"次级土地承包经营权"。次级土地承包经营权在物权法定意义上仍然是一种"土地承包经营权",权利人对土地享有占有、使用和收益的权利,可将该权利设定抵押或作其他法律处分。根据《不动产登记暂行条例》,应将次级土地承包经营权纳入"法律规定需要登记的其他不动产权利",作为土地承包经营权的负担在登记簿中加以记载,并颁发不动产权属证书。

On Shaping the Managerial Right of Land as Real Right under the Separation of Three Rights

The goal of the Separation of Three Rights concerning rural land is to build a new agricultural management system and develop appropriate scale management.For this purpose,it is necessary to shape the managerial right of land as real right.The way is to create the secondary contractual and management right of land on the contractual and management right of land through the contract and registration.The secondary contractual and management right of land is still a kind of contractual and management right of land in the sense of real right legalization,and the right holders have the right to possess,use and benefit from the land and to set the right to mortgage or to make other legal sanctions.According to Provisional Regulations on Real Estate Registration,the secondary contractual and management right of land should be incorporated into other real estate rights required to be registered in accordance with the law as the burden of the contractual and managerial right of land,in the register to be recorded and issued a certificate of real property rights by the competent authority.