承包经营权担保融资模式的法律探讨

承包经营权的流通转让外,以承包经营权的担保融资也有重大现实意义.因土地承包经营权的直接抵押缺乏法律依据,当前流行的担保融资方案是一种利用了反担保设计的三层模式,其在解决金融机构不适合直接作为担保物权主体等方面仍有较大改进空间;承包经营权信托受益权质押的模式结构复杂,但因其制度优势而具备开展价值;如未来农用地“三权分离”得到落实,经营权直接抵押模式有望在改进的抵押物处置机制基础上得到良好的运用.

Legal Study of the Model of Financing Secured by the Right to Land Contractual Management

Besides the negotiability of the right to land contractual management, taking it as financing guarantee is also of great practical significance. Because the law does not lift the control over direct mortgage of the right to land contractual management, the three-tier model taking advantage of counter-guarantee design is a popular way. Financial institutions are not suitable for direct security rights holders; on this account, there is still a large room for improvement of the three- tier model. Though the legal structure is complex, the pledge of beneficiary-right trust has its institutional advantage. In the future,“separation of three powers” of agricultural land may get implemented; the direct mortgage model is expected to get good use, on the basis of an improved mechanism for the disposal of mortgaged land.