土地承包经营权权能论纲——以处分权能为中心

党的十七届三中全会文件的政策取向是土地承包经营权将没有存续期间的限制,土地承包经营权将被永佃化。永佃化的土地承包经营权要求重构土地承包经营权的权能。土地承包经营权权能的完善应置重于其处分权能的完善。对于转包、出租等债权性处分,土地承包经营权主体并未改变,在契约自由理念之下自应允许;对于转让、互换、入股等物权性处分,以改变土地承包权主体为特征,在完善农村社会保障、剥离土地承包经营权的社会保障职能的前提下,应当给予充分保障。

Comments on the Empowerment of Land Management Right

The policy orientation is clear in ’The Decision on Major Issues Concerning the Advancement of Rural Reform and Development’ that the land management right will be not restricted by the management duration and will be of character of emphyteusis.Therefore the relevant laws,regulations and policies shall be revised.Powers of the land management right shall be reconstructed in the context of character of emphyteusis,among which the improvement of its disposal power is the focus.As to the contractual disposal such as sub-contract and lease,the subject of the land management right remains the same,thus this kind of disposal shall be allowed in the context of freedom of contract.As to the disposal of character of real right such as transfer,exchange and join share-holding entities,the subject of the land management right has changed,therefore this kind of disposal shall be protected on the premise that the rural social security has been perfected and the social security function inherent in the land management right has been stripped.