Abstract

Farmers’ land property rights in China are not perfect to some extent，represented by the prohibition by current laws on creating mortgage right on rural land contracting and management rights（hereafter referred to as “land contracting and management rights”）acquired in the way of household contracting.However，as a scare resource，land possessed both use value and exchange value，the latter of which tended to be far higher than the former.In developed countries，land was generally allowed to be traded in the market to acquire its exchange value.

At the beginning of the 21st century，in some rural areas in China，peasants spontaneously mortgaged land contractual management rights.As more and more rural laborers are transferred to cities and towns，more and more attempts have been made to mortgage land contractual management rights.This phenomenon has aroused the attention and research of the academic community，and the state has also given attention and support from the policy level.At present，under the positive affirmation and vigorous advocacy of national policies，many localities have established pilot projects for land contract management mortgages.However，in the face of the prohibitive provisions of relevant laws，the pilot land contract management rights mortgage rules must either “upstream” or “detour”，resulting in high cost，high risk，and low efficiency in the mortgage of rural land contract management rights.Failure to maximize farmers’ land interests.Under the premise of insisting on the collective ownership of rural land，what are the restrictions on the mortgage of rural land contractual management rights？What are the countermeasures？This article will carry out research and analysis accordingly，and put forward corresponding legal suggestions.The main contents are as follows：

The first chapter of this article is an introduction.This chapter first introduces the research background and significance of the article，and then summarizes the main viewpoints and research status of the current academic world，and sorts out the effective agricultural land for overseas developed countries and regions.The experience of the mortgage system is expected to be beneficial to the subsequent analysis and suggestions for improving the system.Based on the collected latest research results at home and abroad，a review is made，and future research is prospected.The third section describes the research ideas and methods of this article，and finally explains the main innovations of this article.

The second chapter is the definition，system function and legal relationship of the mortgage of rural contracted land management right.In this chapter，the author firstly defines what constitutes a rural land contracted management right mortgage through the concept，characteristics，and particularity of the rural contracted land management right mortgage.Then the author analyzes the function of mortgage of the contracted land management right.Specifically，the mortgage of the contracted land management right has economic and social functions and legal functions.Finally，the legal relationship of the subject and object，rights and obligations of the rural contracted land management right mortgage were analyzed.

The third chapter is the legal status of China’s land contracted management right mortgage，the reform practice and problems.This chapter explains the legal status of the mortgage of the contracted land management right in rural areas，and summarizes the reform of the pilot practice of the mortgage of the contracted land management right.The pilot mortgage implementation method is administratively compulsory，the effectiveness of the mortgage right lacks stability and sustainability，and the risk dispersion mechanism is difficult to meet practical needs.

The fourth chapter is the main obstacle to establish the mortgage system of rural contracted land management rights in China.This chapter deeply analyzes the existing restrictions and reasons for the mortgage of land contractual management rights in current practice.Farmers’ land property rights are not the first value of institutional changes.Legal restrictions on the value and capabilities of land contracted management rights and the lack of legal basis for the mortgage of land contracted management rights are the main reasons leading to the lack of the subject status of farmers’ land property rights.The rules for setting up mortgage rights formed in the practice of the reform pilot are still not perfect.Pilot mortgages for land contractual management rights generally emphasize safety and light efficiency，which are specifically manifested in the different scopes of mortgage subject qualifications，different forms of mortgage object，low mortgage object value，and mortgage types are complex.In addition，the lack of external control mechanisms for the realization of mortgage rights，insufficient implementation methods of mortgage rights and collateral disposal methods，and the inability of landless farmers to resettle properly after the realization of mortgage rights are also reasons for restricting the mortgage of land contractual management rights.

The fifth chapter is the basic principles of constructing the mortgage system of land contracted management rights in China.In the process of promoting the “rule by law” in our country，farmers’ rights are truly “empowered” only when they become legal rights.Therefore，we should firstly clarify the legal status of farmers as the subject of land property rights in order to realize that farmers’ land property rights are the primary value of institutional change.Then，by improving the value and capabilities of the land contractual management right，the land management right should be separated，and the mortgage of the land management right should be allowed to give farmers more land property rights and establish the subject status of their land property rights.On the basis of establishing a mortgage system for the management rights of rural contracted land in China，the power of contracting land management rights should be reasonably expanded.This is an effective way to fill the defect of the “separation of two rights” type land property right structure，and also adapts to the legal structure of the “three rights separation” type land property right structure.The chapter concludes with the necessity and feasibility of legalizing the mortgage of contracted land management rights.On the premise of insisting on collective ownership of rural land，a mortgage system for the management rights of rural contracted land should be established.Based on the distinction between the “farmers” and “new agricultural subjects” mortgaged land management rights system，the scope of the mortgage subject，the nature of the mortgage object，the relative uniformity of the mortgage types，and the term validity of the mortgage rights are analyzed.

The sixth chapter is the establishment of the mortgage of the rural contracted land management right in China.This chapter analyzes the subject and object of the mortgage right and the establishment and registration of the mortgage.The organic combination of the “registration effectiveism” and “registration antagonistism” of the mortgage right as the principle of the entry into force of the mortgage right；the land contract management right and the land management right are registered separately according to the “land” acquisition and compilation method；As the mortgage registration agency，when the mortgaging rights are realized by the farmer as the mortgagor，only the land management right will be dealt with.The implementation of the mortgage right will increase the “mandatory management”.It is not appropriate to use forced sale and forced auction.

The seventh chapter is the realization of the mortgage of the right to operate the rural contracted land in China.In this chapter，based on the previous analysis，the path of the realization of the rural contracted land management right is explained from three main aspects，namely the validity period and scope of the realization of the mortgage right，the specific realization of the mortgage right，and the construction and improvement of the mortgage.Risk realization mechanism for realizing rights.In terms of the specific realization of the mortgage right，the author firstly types the different mortgagors and takes negotiation as the first-internal disposition of the collective economic organization-the mortgagee subcontract，lease，and other creditor’s rights transfer methods to dispose the land contractual management，and the preferential treatment of the proceeds from the circulation of the proceeds-swaps，transfers，and other methods of disposition of mortgage disposal，and proposed that members of this collective organization do not enjoy priority when the mortgage is realized.In constructing and improving the risk diversification mechanism for the realization of mortgage rights，we should define the main types of risks in the realization of mortgage rights，and then set up a diversified risk dispersion mechanism to give full play to the role of the government in diversifying risks，while actively using insurance，funds and other means, so as to effectively guarantee the security and smooth progress of the mortgage of the right to farmland contractual management in China.

The eighth chapter concludes by suggesting that under the premise of adhering to the collective ownership system of rural land in China，a “three rights separation” type rural land rights structure is established，with the land contract management right and the land operation right as mortgage objects，and the rural contract land management right mortgage system.The chapter also proposes corresponding legislation and amendments accordingly.

Keywords：Separation of three rights，Land contracted management right，Mortgage land contracted management right