论文部分内容阅读
本文重点探讨了农村土地承包合同对土地承包经营权物权确立的作用,以及法律对土地承包经营权物权限制的正当性问题。本文认为,土地承包合同的签订不仅是农村土地承包经营权物权的创设行为,并成为土地承包经营权物权的形成路径,而且,它的内容也弥补了《农村土地承包法》对土地承包经营权物权的一般性规定。然而,由于中国土地所有权存在着二元结构,并呈现为非对称性,因此,在此种所有权基础上派生出来的土地承包经营权物权必然存在不完整性。这种不完整性的实质则表现为法律对农村土地承包经营权物权的限制。这种限制不仅符合现代物权社会化的发展趋势,同时,在当今中国也具有难以超越的现实基础。当然,在追求土地的效率和公平的动态平衡过程中,法律对农村土地承包经营权物权的正当性限制的内容也在不断调整之中。
This paper focuses on the role of rural land contractual contract in establishing the real right of contractual management of land and the law’s limitation on the right of contractual management of land. This paper argues that the signing of the contract of land contract is not only the act of creation of the real right of the contracted management of rural land, but also the formation path of the real right of the contracted management right of the land. Moreover, its content also makes up for the contract of land contract General provisions of the right to operate. However, due to the existence of a dual structure of land ownership in China and its emergence as asymmetric, there is an inevitability of incompleteness of the land contractual management right deriving from such ownership. The essence of this incompleteness is manifested by the law’s restriction on the right of contracting management of rural land. This restriction not only conforms to the trend of the socialization of modern real rights, but also has a realistic foundation that is difficult to surpass in today’s China. Of course, in pursuit of the efficiency and fairness of land in the process of dynamic balance, the content of the law restricting the legitimacy of rural land contractual management rights is also constantly being adjusted.