狭义土地承包经营权特殊用益物权性质及其流转保护

规范和引导农村集体土地流转市场,前提是界定土地承包经营权的内涵和所流转土地权利的属性,但我国立法及相关理论研究对此都缺乏明确的解释。以区分两种涵义的＂土地承包经营权＂为起点,从农民与集体经济组织的产权关系、集体经济组织的性质以及相关法律规定三个方面,分析了狭义土地承包经营权的特殊用益物权性质,指出其作为农村集体经济组织成员平等承包本集体土地的权利,具有不同于一般用益物权的特殊性质,是接近自物权的他物权,是法律保护农民土地产权的重点。土地流转中除了土地互换外,转移的并不是土地承包经营权,而是土地使用权,应当根据不同情况采取相应的规范措施。

On the Nature of the Specific Usufruct in the In-a-limited-sense Contractual Right to Land Business and the Usufructuary Protection in Land Circulation

Defining the connotation of the contractual right to land business and the nature of the right to the circulated land is a prerequisite for regulating and guiding the market of the circulation of the rural collective land.In China, however, both the legislation and the related theories lack of definite explanation. Distinguishing the two connotative meanings of the contractual right to land business used as start point, from the angles of the property relationship between farmers and their collective economic organizations, the nature of the collective organizations and the relevant laws and regulations, the nature of the specific usufruct in the contractual right to land business in a limited sense is analysed. It is pointed out that as a right for the members of the rual collective economic organizations to equally contract the collective land, the specific usufruct, compared with the usufruct in a general sense, is possessed of distinctive nature,the right over things of another close to the right over things of the self, and viewed as a key for law to protect farmers＇land property. In land circulation, with land exchange as exception, it is not the contractual right to land business but the right to land use that is shifted and, therefore, the corresponding regulations and measures should be taken according to different situations.