《物权法》中"土地承包经营权"条文设计研究

全国人大常委会法工委《物权法(草案)》已明确界定用益物权性质的农用土地利用权名称为"土地承包经营权".但该《物权法(草案)》中"土地承包经营权"条文设计存在着土地承包经营权概念未界定、标的物规定不甚明确、设立方式规定不科学、变更不尽合理和全面、承包地收回和调整不规范、土地承包经营权消灭种类不齐全等问题.应吸收并借鉴国内理论研究之成果和国外永佃权、用益权等用益物权法律规范《土地承包经营权》条文设计并予以修改,内容包括土地承包经营权的概念、标的物、土地承包经营权人、土地承包经营权的期限、土地承包经营权的设立、土地承包经营权的变更、土地承包经营权的流转和土地承包经营权的消灭.

On Clause Design for Land Contracting Management Right in Real Right Law

With the deepening of the reform in China's rural economy, the system of contracted responsibility linking remuneration to output of whose core lies in the right of management of contracted land has come into being and been perfected. This land contracting management right is a real right in nature, belonging both to the real right over the property of another, and to the usufructuary right over the property of another, or rather, a new type of usufructuary right. Land contracting management right has become one of the very important contents in the enactment of real right law. Real right law (draft) enacted by Legal Committee of SCNCPR has stipulated explicitly the appellation of agriculture land management right as land contracting management right, which is a usufructuary right in the nature. The paper attempts to make an analysis of the following existing imperfections in real right law (draft): undefined concept of land contracting management right; implicit provision of targets; the unscientific design of ways of establishment; unreasonable or inconclusive alterations; substandard withdrawal or adjustment of land contracting form and imperfect variety of termination for land contracting management right. Using tenure right and ususfructus for reference from overseas usufructuary right law and absorbing achievement in relevant domestic theoretical research, the paper systematically puts forward a comprehensive draft suggestion on clause design for land contracting management right. The main contents of the draft covers the concept of land contracting management right, its targets, its involving party, its term, establishment, change, transferring and transferred-contracting and its termination.