摘要
农地"三权分置"模式下的土地经营权虽有被解释为物权或债权的空间,但将其定性和定位在物权利多弊少,且不宜仅从存续期限的长短、登记与否等角度来作判断。集体经营性建设用地使用权与国有建设用地使用权同权、同价应当落到实处,既要避免本为商业目的利用集体土地却实施征收的措施,以防集体土地所有权人的收益减少;又应封堵"绕道"宅基地使用权的渠道而后转入集体经营性建设用地使用权的"土地池"的暗度陈仓。居住权制度在相关人之间可以满足住房困难者生活居住的需要,也应成为投资性建设者用其达到合作各方共赢的法律手段,故应允许较为宽松地解释和适用居住权制度。变僵硬地禁止流押条款为弹性地对待流押条款,把流押条款交由各个相应的制度及规则去处理;变由抵押权人独享抵押物转让与否的决定权为充分尊重抵押物所有权人的意愿,设置抵押权的追及效力和涤除权甚至提存的制度来保障抵押权人的利益,平衡方方面面的利益关系,是明智之举。重整抵押权与质权的顺位关系的规则,合并动产抵押和浮动抵押,增设超级优先权,都是可圈可点的。
Although there is room for the right to land management under the pattern of‘ separation of ownership, contract right, and management right’ to the rural land to be interpreted as the property right or creditor’s right, the benefits outweigh the disadvantages to characterize and position it as the property right, and it is not appropriate to judge only from the perspectives such as the length of the duration, and registration or not. The same rights and prices of the right to use collectively-owned commercial construction land and the right to use state-owned construction land should be implemented, which not only avoids implementing the measures of expropriation on the collectively-owned land for commercial use to prevent that the collectively-owned land owner’s earnings are reduced, but also blocks the improper behavior of bypassing the channel of the right to the use of the house sites and transferring to the‘ land pool’ of the right to use collectively-owned commercial construction land. The system of the right of habitation can meet the living need for the people with housing difficulties among the people concerned, and should also become the legal means for investment builders to achieve win-win cooperation with all parties involved. Therefore, the system of the right of habitation should be allowed to be interpreted and applied more leniently. To flexibly treat the agreement between the parties about the mortgagee’s acquirement of the ownership of a mortgaged property if the obligor fails to perform its obligations within the time limit for the rigid provision to ban the agreement, the provision about the agreement is handled by each corresponding system and rule;to fully respect the will of the owner of the mortgaged property, changing the right to decide whether the mortgaged property is transferred or not which is enjoyed alone by the mortgagee, setting up recourse and elimination right of the right to mortgage, or even the deposit system to guarantee the interests of the mortgagee and balance the interests of all sides, which is wise. It is advisable to reorganize the rules of sequence relation of the right to mortgage and the right to pledge, combine chattel mortgage with the floating mortgage, and add the super priority.
出处
《中国法学》
CSSCI
北大核心
2020年第4期26-43,共18页
China Legal Science
