In 2005, Chongqing Branch of China Development Bank conducted a pilot project for Chongqing Jiangjin Ren Wei Fruit Industry Co., Ltd., trying to provide loans to the company with farmers' land management rights as collateral. This model implements a "four-in-one" operation mechanism, that is, in Chongqing Branch of China Development Bank, the government, social intermediaries and enterprises, the district and county governments organize specialized agencies, guarantee institutions and agency banks to build a financing platform. Some experts believe that this reform of CDB is conducive to improving the degree of specialization of agricultural production, and it is a breakthrough and a useful attempt in the circulation system of rural land contractual management rights in China.
Whether the contracted management right of rural land can be mortgaged has always been controversial. Relevant experts believe that the right to use agricultural land is the basic condition for farmers' production and life. If mortgage loans are allowed, it will be difficult to prevent rural polarization, and a large number of landless farmers will have social problems. In this regard, in March 2005, the Measures for the Administration of the Circulation of Rural Land Contracted Management Right issued by the Ministry of Agriculture specifically stipulated that the contracted management right of rural land obtained by the contractor according to law can be transferred through subcontracting, leasing, exchange, transfer or other means, provided that it complies with relevant laws and national policies. In order to develop the agricultural economy, the contractor who implements the household contract mode takes the right of land contractual management as the equity and voluntarily engages in agricultural cooperative production and management; Contractors of other contracting methods quantify the right to contracted management of land into equity, set up joint-stock companies or cooperatives, and engage in agricultural production and operation. Obviously, this "Administrative Measures" encourages farmers to use contracted land as shares for cooperative production, and does not stipulate that rural land contractual management rights can be mortgaged. The National Development Bank's permission to mortgage loans with equity is a breakthrough support policy for farmers' cooperative organizations. However, the operation should fully consider the supporting policies, especially the government's participation in this "four-in-one" model to prevent risks from being passed on to the government.
Shandong allows agricultural land mortgage loans, which experts say is illegal.
/kloc-In May of 0/9, the Notice of Shandong Provincial Government on Further Promoting Employment involved "rural land use right mortgage loan". However, people are worried that documents without legal procedures will easily become a dead letter even if they are registered there. Scholars believe that this move is reasonable and illegal.
Agricultural land mortgage loan Shandong broken?
"That's great! Can this break through? How can you talk like that? The law is there, which is impossible! " Wang Guiqin, deputy director of the Economic Management Department of the Shandong Provincial Department of Agriculture, has a firm attitude.
In fact, Wang Guiqin has been thinking about it for many days. If she hadn't read the news on the Internet, she didn't know that Shandong Province clearly put forward the "rural land use right mortgage loan". One of the duties of Wang Guiqin's rural economic management office is to guide the rural land contracting, the right to use cultivated land and the circulation of contracted management rights.
In the Notice on Further Promoting Employment (hereinafter referred to as the Notice) issued by Shandong Provincial Government on May 19, there is actually only one sentence about "rural land use right mortgage loan": "Rural financial service institutions should broaden the coverage of farmers' microfinance and joint guarantee loans, relax loan conditions, lower the standard of loan mortgage (pledge), and improve entrepreneurs' housing property rights and land use rights".
According to the reporter of Outlook Oriental Weekly, the above notice was led by the Employment Department of Shandong Provincial Department of Labor and Social Security, and more than 20 departments including Shandong Provincial Development and Reform Commission, Finance Department and Agriculture Department participated in the investigation and consultation. At the same time, the Shandong Provincial Government also solicited the opinions of Jinan Branch of the People's Bank of China and Shandong Banking Regulatory Bureau on providing mortgage loans for rural land use rights. When I sent a comprehensive message to the General Office of Shandong Provincial Government, I had "almost no objection".
The difference of "almost no difference"
"If it fails, how can I sign this notice?" On June 19, Wang Guiqin asked his colleague in the office of Shandong Provincial Department of Agriculture again, but he still didn't get the answer. Wang Guiqin believes that the phrase "rural land use rights can be mortgaged" should obviously be exported to the Economic Management Office. But since seeing this news, she has asked three clerks in this office, and they have never heard of it.
Judging from the contents of the notice, this document issued by the Shandong Provincial Government is mainly in response to Document No.5 issued by the State Council on February 3, to promote employment and encourage migrant workers to return home to start businesses.
According to Yi Junqiang, deputy director of the Employment Department of the Shandong Provincial Department of Labor and Social Security, who took the lead in formulating the document, after Circular No.5 was issued, the provincial labor and social security departments were required to do relevant work, and the Employment Department drafted a notice for the provincial government. During the drafting process, more than 20 departments including the Ministry of Agriculture participated in the investigation and consultation.
Xiao Peiqiang, a researcher at the Policy and Regulation Department of the Ministry of Agriculture, told Outlook Oriental Weekly that since the Notice involved employment and the transfer of agricultural land use rights, the opinions of the Department of Science and Education and the Department of Economic Management were sought at that time, and there was no objection.
"Unless the country allows' pilot', it is impossible to open this hole." Wang Guiqin's insistence has its own reasons-"If the land can be mortgaged, it will be easily taken away, and farmers will lose their livelihood security".
She found out the "People's Republic of China (PRC) Guarantee Law", which clearly stipulates: "The following property shall not be mortgaged: land ownership; Collective land use rights such as cultivated land, homestead, private plots and private hills ".
"Only private property can be mortgaged. Land ownership is not owned by farmers, but by the state and the collective. How can I mortgage it? This must be implemented according to law and cannot be broken. " Wang Guiqin expressed his position.
However, there are also people who take a different position from Wang Guiqin. An official of the Agriculture Department of Shandong Province, who asked not to be named, said in an interview with the media that the mortgage of farmland contractual rights is only a new form of land circulation, and it has not changed the collective ownership of farmland or the nature of farmland.
Xiao Peiqiang told this reporter: "When the first-level government formulates documents, in addition to soliciting opinions from departments, the general office of the provincial government will definitely consider them comprehensively. I believe that detailed rules will be formulated within the scope of laws and regulations. "
He believes that preferential policies will promote development to a certain extent, and may also be inconsistent with some laws and regulations. "The operating rules and supporting documents will be issued at the end of July, so you may wish to wait and see."
Institutional breakthrough is still a dead letter.
In China's current land management laws and regulations, the mortgage of agricultural land contractual rights has always been a "forbidden area". Shandong province clearly stipulates that the housing property rights and land use rights of migrant workers returning to their hometowns can be used as collateral, which is a breakthrough in the system.
According to Yi Junqiang, the "land use right" in the Notice actually refers to the rural land contracting right. The so-called "house property right" mainly refers to the houses built by farmers on rural homesteads. As for whether the "rural land" here includes cultivated land, Yi Junqiang said that it is still under negotiation.
"Migrant workers are rural hukou, and they are allowed to mortgage loans with land use rights. In fact, only the right to contract agricultural land can be mortgaged. " Yi Junqiang told this reporter. This means that farmers in Shandong Province are expected to mortgage their land use rights to rural financial institutions such as rural credit cooperatives if they are identified as "returning to their hometowns to start businesses", thus obtaining financial support.
According to the current Land Management Law and Agricultural Land Contract Law, China's agricultural land contract right and rural homestead use right belong to collective ownership and cannot be mortgaged. Rural homestead cannot be mortgaged either. If farmers in Shandong province can use houses as mortgage loans, once the mortgage is realized, the ownership of houses will be transferred. Under the current policy, the ownership of rural houses changes hands, and the right to use the homestead is also transferred, which is basically equivalent to "mortgage of the right to use the homestead".
There is no doubt that the above provisions in Shandong Province have actually broken through the restrictions of relevant laws and have the value of local institutional innovation.
Yi Jun Qiang, the main author of the Notice, doesn't seem to be clearly aware of this value. He only used the relevant policies of Henan Province for reference when drafting the document, and appropriately relaxed the rural mortgage and financing conditions. Similarly, he is not aware of the restrictions of laws and regulations. "It seems that the property law does not explicitly say that this is not possible."
In fact, the debate on whether the right to contract agricultural land can be mortgaged runs through the whole process of the formulation of the Property Law.
In June 5438+April 20051October, the fourth draft of the Property Law and the fifth draft of the Property Law in August 2006, the contracted management right of agricultural land can be "conditionally mortgaged": "If the land contractual management right holder has a stable income source, he can mortgage the contracted management right of land with the consent of the employer. If the mortgage right is realized, the use of the contracted land shall not be changed. " This statement is considered by many experts as an important breakthrough in China's agricultural land legal system.
However, this clause was deleted in the "Draft Six Review" on the grounds that the Property Law (Draft) should be consistent with the lower-level laws such as the Agricultural Land Contract Law and the Land Management Law.
The Property Law actually blocked the "hole" of rural land mortgage, making the agricultural land contracting right and homestead, as the most important property rights of farmers, more incomplete. Some scholars have quite different views on this. In this context, Shandong province clearly put forward "rural land use right mortgage loan", and its system breakthrough value is obvious.
But can "breakthrough" really be achieved? Huang Xinshe (pseudonym), who has been engaged in rural credit for a long time, prefers to look at the operating rules. "There are dozens of classifications of agricultural land, and some agricultural land use rights have been mortgaged for many years. Can farmland be mortgaged now? Even documents that have no legal procedures for registration can easily become a dead letter. "
Huang Xinshe's worry is not superfluous. Whether the contents of the Notice can be truly implemented in reality depends on whether rural financial institutions accept farmers' land contracting rights as collateral. However, Jinan Branch of the People's Bank of China, which participated in policy formulation, has not responded to this interview so far, and Zhang, head of the Shandong Rural Credit Cooperative Office, also said that he has not received this notice.
"The loan is voluntary. Banks need to consider the actual situation and whether they can realize mortgage. There is no spectrum yet. " Yi Junqiang is also considering follow-up issues.
If property rights are not reformed, they will still be small farmers.
"The practice in Shandong is reasonable and illegal." Guo Ying, an expert on rural development, told Outlook Oriental Weekly, "This practice is conducive to farmers' entrepreneurship. Through mortgage loans, farmers can get lower-cost loans. Will this practice make a large number of farmers lose their houses and contracted land? I don't think it's possible. Farmers and banks will be very cautious. As for a small number of farmers who lose the right to contract houses and cultivated land because they can't afford to repay their loans, this is of course inevitable, but we can't give up food because of choking. "
In fact, with the deepening of China's reform, many farmers in rural areas and suburban areas in the eastern developed areas have the need to develop production or move into cities with mortgaged farmland contracting rights, and the circulation of rural homesteads is widespread in many places.
Many land experts believe that some contradictions in rural areas are closely related to the incomplete reform of agricultural land system.
"The factors of production in rural areas can't flow, making rural homesteads worthless, and the scale of agriculture has never been realized." Years of experience in rural credit work told Huang Xinshe that only with clear property rights can we get rid of small farmers and transform into modern agriculture.
Farmland contracting right and homestead use right are the most important property of farmers, and their transfer and mortgage are restricted, which greatly restricts farmers' production and development. It is understood that as of the end of April 2008, the deposits of rural credit cooperatives in Shandong Province reached 460 billion yuan, an increase of more than 66 billion yuan year-on-year, while their loans only increased by 40 billion yuan. Small-scale agricultural production basically does not need the intervention of financial institutions, while large-scale production is limited by unclear property rights.
It is understood that in order to implement the relevant policies of the Notice, the Shandong provincial government is studying and drafting the operating rules for the right to use agricultural land and mortgage houses. Party Guo Ying suggested that in order to break through the existing farmland system, it may be necessary to introduce supporting reform measures: if the contracting right remains unchanged for a long time, even permanently, banks will not accept mortgages. There should be bankruptcy regulations for farmers, so that banks can also bear the necessary risks. How farmers live after bankruptcy and whether there is any way to ensure their minimum living standard need institutional consideration. Clear land use planning. For example, cultivated land is cultivated land and cannot be turned into construction land just because it is taken away and auctioned. The mortgage price of different land varies greatly. If the plan is not clear, it is likely that farmers will suffer. Innovate the insurance system to disperse the risks of farmers and rural banks, which is conducive to economic and social stability.