1. What is usufructuary right?

Generally speaking, the right of income is one of the four powers of ownership-possession, use, income and disposal, that is, the right of property owners to obtain economic benefits from the possession, use and disposal of property according to law.

The land usufructuary right we are talking about actually refers to the right of state-owned land users to obtain corresponding economic benefits by disposing of their state-owned land use rights according to law, which should be called the usufructuary right of state-owned land use rights. In order to study the feasibility of pledge of land usufructuary right, according to the different ways of obtaining income, we divide land usufructuary right into two categories: disposal usufructuary right and operation usufructuary right; The former refers to the right of the obligee to obtain corresponding income at the consideration of losing the right to use state-owned land, while the latter refers to the right to obtain corresponding income from the operation and use of land use right without losing the right to use state-owned land. As far as land reserve institutions are concerned, the right to dispose of income refers to the right that the disposer enjoys according to law in the process of transferring, replacing, allocating or allocating the right to use state-owned land. The right to operate refers to the right of land reserve institutions to lease or use the land put into storage for operation, and to enjoy the income from the land put into storage according to law in the course of operation.

Second, the land usufruct right cannot be pledged.

1. What is pledge?

Article 63 of the Guarantee Law stipulates: "The chattel pledge mentioned in this Law means that the debtor or a third party transfers his chattel to the creditor for possession and takes the chattel as the guarantee of the creditor's rights. When the debtor fails to perform the debt, the creditor has the right to discount it in accordance with the provisions of this law or give priority to compensation with the price of auction or sale of the movable property. "

Article 81 of the Guarantee Law stipulates: "In addition to the provisions of this section, the provisions of the first section of this chapter shall apply to the pledge of rights."

As can be seen from the provisions of the Guarantee Law, the so-called pledge has two characteristics: first, the obligee controls the pledge; Second, the obligee can't exercise the pledge while controlling the pledge, and this right can only be exercised when the debt is due and can't be paid off.

2. Land use rights cannot be pledged.

(1) Theoretically speaking, land usufruct cannot be pledged.

(1) Land disposal income right cannot be pledged.

The income from the disposal of the right to use state-owned land is the income that can only be obtained when the right holder loses the right to use state-owned land, and only when the right to dispose of state-owned land is obtained can he enjoy this part of income. This is because in the absence of a definite successor and the inability to bind the successor in the form of contract, the successor will only pay the consideration to the creditor according to the original transaction form.

Therefore, the right to the proceeds from the disposal of state-owned land use rights is a right beyond the lender's control and does not conform to the pledge characteristics stipulated by law.

② The land management income right cannot be pledged.

In leasing, the right to collect rent is an established right, and lenders can directly obtain this right to enjoy rental income, not to mention pledge; If the lender restricts the borrower's lease right until the debt cannot be paid off at maturity, it is limited by the land lease term; If leasing is only a possible way for the borrower to manage the storage land, it is even more impossible to pledge the lease right before the leased land is determined.

Simply put, the lease right of leased land is not suitable for pledge, and the future lease right of leased land cannot be pledged.

It should be noted here that the right to collect rent is pledged, and the right to collect rent is pledged instead of rent. In addition, as a form of money, rent itself is not pledged.

Judging from the borrower's own use, there is no possibility of pledge legally and logically.

(2) From the specific operation point of view, the land usufruct right is not suitable for pledge.

(1) Land disposal income right is not suitable for pledge.

If the third party cannot be bound in advance, the lender must control the disposal right of the state-owned land use right if it wants to obtain the pledge guarantee of the land disposal income right, that is to say, the lender must master the relevant right certificate of the state-owned land use right, but the result of doing so is the mortgage of the state-owned land use right or just the result of the mortgage of the state-owned land use right.

In other words, we can't pledge the right to use state-owned land in our operation.

Some people think that the borrower's right to dispose of the target state-owned land use right can be restricted by government approval or some other competent authority. We don't doubt the right of the government or even other organs to use state-owned land, but other parties involved in this way undoubtedly exercised the judicial duties of the government or other organs and reached a trial result in advance. ② The usufructuary right of land management is not suitable for pledge.

Take the lease right as an example. If the lender directly enjoys this kind of income right, then this method is not mortgage, but is used to offset the loan, which undoubtedly requires the borrower to pay off the debt in advance.

According to our understanding, the only way to pledge the leasehold right is to restrict the leasehold right of the leased land. When the loan cannot be paid off at maturity, the creditor can dispose of the leasehold right. However, from the practice of land reserve in various places, it is only a stopgap measure for reserve institutions to lease the land in storage, which makes the pledge of lease right of leased land lose its maneuverability. (3) According to the current laws and regulations, land usufruct cannot be pledged.

(1) According to the provisions of the Security Law, the land usufruct cannot be pledged.

Article 75 of the Guarantee Law stipulates: "The following rights can be pledged:

(1) Bills of exchange, checks, promissory notes, bonds, certificates of deposit, warehouse receipts and bills of lading;

(2) Shares and stocks that can be transferred according to law;

(3) Trademark exclusive right, patent right and property right in copyright that can be transferred according to law;

(4) Other rights that can be pledged according to law. "

As to whether other rights in (4) can include usufructuary right of land, our view is negative. The reason is:

First, we believe that the provisions of this paragraph only provide convenience for legislation and justice, and do not leave room for the agreement of the parties;

B, the pledge is a kind of real right, and China implements the principle of statutory real right. The so-called legal property right means that the types of property right and the contents of all kinds of property right are uniformly stipulated by law, and the parties are not allowed to create them freely.

② The existing provisions on pledge of usufruct do not apply to pledge of usufruct of land.

The existing provisions on the pledge of income rights include the pledge of charging rights in expressway and the pledge of power income rights in power grid construction and transformation projects. (According to our analysis, the so-called "pledge" in these two ways is actually not a pledge in the sense of the Security Law. The so-called "pledge" is essentially a guarantee of creditor's rights based on established rights, and the pledge right must be certain and feasible. However, when these two forms of "pledge" are set, the project is still in the construction stage, and the charging right or income right is still in an uncertain state, which obviously violates the essential characteristics of pledge. We analyze that the reason why the State Council and other competent authorities stipulate that both methods can be pledged is actually due to the original meaning of the legal act of guarantee, that is, to guarantee the realization of the lender's creditor's rights in a possible way. This pledge of the right to charge for construction projects is essentially a loan condition provided by the borrower to the lender according to the characteristics of construction projects. However, we believe that these two aspects of the pledge of usufruct have no reference significance for the pledge of land usufruct. Take the right to charge in expressway as an example:

The Reply of the State Council on Issues Related to Loan Guarantee of Toll Road Project stipulates the content of pledge of expressway's toll right. However, expressway's charging right pledge has two characteristics: a, the charging right used for pledge is the income right of the loan project under construction; B, because the project has not been completed, the pledge right is only a kind of expectation right for the specific project charging right; C, the right to charge is a kind of operating income right.

For land reserve loan, A, it is a rolling business model, and the total amount of land reserved is infinitely variable. Instead of using a certain amount of loans to determine the plot, the land use right itself keeps coming in and out; B, for the land used by land reserve institutions, its usufructuary right has been established and determined; C, for the land to be disposed of, its income is a kind of disposal income, not operating income.

To put it simply, expressway's charge pledge right is the right to fix and determine the construction project, which is not only a right to operate and use the proceeds, but also a right to expect. As for the right to land revenue, whether it is the right to dispose of the land use right or the right to operate the land use right, it is essentially different from the right to charge for the highway under construction. Therefore, there is no comparability between the right to land revenue and the right to charge fees in expressway.

To say the least, even if the usufructuary right of land and the charging right of expressway are completely similar, according to the principle of statutory property right, the pledge of usufructuary right of expressway cannot be extended and applied at will by the parties.

The same is true for the pledge of power income right in power grid construction and transformation projects.

Third, there is no need to consider the pledge of land usufruct.

The reason why the pledge of land use rights is considered is largely because the holders of this view doubt whether the land use rights put into storage can be used as collateral for land reserve loans by land reserve institutions. We think this kind of worry is unnecessary. Land reserved by land reserve institutions can be used as mortgage for loans. Let's analyze this problem:

1. The land reserve institution regulates the primary land market on behalf of the government, and all its management activities, including land transfer and replacement, can be carried out under the authorization of the administrative department of land and resources and other competent departments. As a punishment, the mortgage of state-owned land use right should also be carried out under the authorization and approval of the competent department. According to the laws of our country, the people's governments at the city and county levels and the land management departments exercise state-owned land rights on behalf of the state, and the validity of their legal authorization can still be recognized.

2. According to the relevant provisions of the local reserve system, it is generally clear that loans from financial institutions are one of the sources of land reserve funds, and land reserve institutions can use the land use right put into storage as a guarantee for loans.

3. the State Council's Notice on Strengthening the Management of State-owned Land Assets stipulates that "financial institutions shall provide credit support according to law" for land reserve matters in various places. The State Council encourages financial institutions to issue loans to land reserves in the form of administrative regulations, and it is not prohibited and should not be prohibited to guarantee the realization of financial institutions' creditor's rights with the mortgage of state-owned land use rights.

To say the least, even if the land reserve institution has no right to provide loan mortgage with the land it reserves, the lender can also ask the Municipal People's Government and the land management department to provide mortgage with the state-owned land use right (the land use right reserved by the land reserve institution) within its administrative division. There are two reasons:

1. Although the Guarantee Law prohibits the government from providing guarantees to third parties, it does not restrict them from providing guarantees in other ways, and the Guarantee Law clearly stipulates that the right to use state-owned land can be mortgaged.

2. The land reserve institution exercises the land reserve function on behalf of the government, and it is a legal person of public institution in operation, but in essence, the arrangement, acquisition, replacement and reserve of its land (land use right) are all government actions.

The land reserved by the land reserve institution here refers to the right to use all state-owned land held by it or legally owned by its government, regardless of whether the land is used for transfer or allocation. We believe that there is no difference in the source of land storage between land reserve institutions and allocated income. Land reserve institutions exercise land reserve and management functions on behalf of the government. It is in this sense that the transfer of land use rights by land reserve institutions is called "transfer" rather than "transfer", and the essence of land use rights transfer is that the state monopolizes the primary market of state-owned land use rights.

Because the right to use the land in storage can be mortgaged, according to the value of the right to use the land and the operation mechanism of the land reserve, we think that setting mortgage on the right to use the land in storage is enough to ensure the realization of creditor's rights. There is no need to seek the pledge of land use rights.

What needs to be reminded here is that there is no difference between the land reserve agency's right to purchase and store land and the transfer income. No matter how they acquire land, it belongs to the government and is exercised by the land reserve agency. After legal authorization, it can be disposed of by the reserve institution by means of transfer, transfer and replacement.

Four, the risk of land use right mortgage and preventive measures

Land is a non-renewable resource. Under normal circumstances, the value of land use rights (regardless of the use period) is less likely to be impaired, so the operational risk of loan projects does not need to be considered too much. The risk of land use right mortgage mainly lies in the mortgagor's right to dispose of the collateral and the right to control the income from the disposal of the collateral, which is embodied in the following three points:

1. Does the mortgagor really have the land use right?

(1) risk

There are few disputes about the right to use the land originally purchased by the state (such as the land recovered by government investment). For the land recovered by the government, sometimes although the government and land reserve institutions have obtained the land use right certificate, the land use right cannot be registered in the land management department in accordance with relevant laws and regulations because the recovered money has not been paid off or for other reasons. At this time, the land use right has not been transferred with the delivery of the right certificate. In this case, the government and the land reserve institutions have no right to use the land or mortgage the land, so their mortgage setting behavior is invalid because they have no right to dispose of it.

(2) Prevention

In view of the land use right recovered by the state from the original user, the mortgagee should check with the land management department whether the land use right has been transferred and whether the government and reserve institutions have mastered the land use right when the mortgagor provides the land use right certificate.

2. The disposal of land by land reserve institutions is restricted by the approved land use.

(1) risk

The land reserved by the government and land reserve institutions has different uses, or has been sold or allocated. The use of reserved land is not decided by the reserve institutions, nor by the government and land management departments. Our understanding is: if the land use right to be transferred is mortgaged, the mortgage should be auctioned, sold and discounted in accordance with the rules of land use right transfer; The mortgaged land use right is determined by allocation and allocation, and the disposal of land use right should also be carried out in accordance with allocation and allocation when mortgage is realized. When the state allocates land, it only charges the corresponding cost to the land users, and the allocated land often gives considerable preferential treatment. In this case, if the land use right is not allocated or allocated when the mortgage is set, the creditor's rights may be difficult to be effectively protected.

(2) Prevention

The key to this problem is to pay attention to the matters indicated in the "Use" column of the land use right certificate stored in the land reserve center.

3, the realization value of the mortgaged land use right

(1) risk

Land use right is a very special kind of collateral. When the mortgaged land use right is mortgaged, not all land use right income obtained by auction, sale, discount or other means can be used to pay off debts, except for paying taxes and fees like ordinary transactions. According to the Interim Measures for the Administration of Collection of Income from Paid Use of State-owned Land Use Rights, 5% of the total amount of land transfer fees should be turned over to the central finance, and local governments should also charge a certain amount of transfer fees according to the proportion determined by the financial departments of provinces, autonomous regions, municipalities directly under the Central Government and cities with separate plans on the basis of the verification of land development costs.

(2) Prevention

It is suggested that the proportion of land transfer fees collected by the corresponding local governments should be investigated, and on this basis, the types and amounts of mortgaged land use rights should be determined to ensure an appropriate mortgage rate.

On this premise, in order to

(1) Ensure that the formal mortgagor has the authorization to set the corresponding mortgage,

(2) Ensure the appropriate mortgage interest rate,

It is recommended to pay attention to the following issues:

(1) When the land use right is mortgaged in the name of the land reserve institution, the land reserve institution is required to provide at least the following materials:

(1) authorization of the municipal and county people's governments and land management departments for the use and mortgage of corresponding plots (whether in the form of specific plots or in the form of normative documents)

(2) The authorization of land ownership by the people's governments of cities and counties and land management departments conforms to the land planning of provincial people's governments and even the overall land use planning of the whole country.

(2) In case of mortgage in the name of the municipal or county people's government and the land management department, at least the above second condition must be met.

Of course, repeated mortgage, improper mortgage and so on are often the risks faced by creditors, so I won't go into details here.

How do verbs (abbreviation of verb) get land benefits?

For land revenue (currency), we think:

(1) disposal income

The land use right that the land reserve institution has the right to dispose of or has the right to dispose of after authorization can be mortgaged, and the proceeds from the disposal of the mortgaged land use right can naturally guarantee the realization of the mortgagee's creditor's rights.

(II) Income from operation and use

In order to ensure the realization of creditor's rights, according to the characteristics of the use of funds by the land reserve institution, the lender may require the reserve institution to pay off the debts in advance with the future operation and use income of the reserved land. When this method is applied, the lender, the borrower and the bank can sign a supervision agreement on the debt repayment fund account, and the borrower guarantees that when the land use right is leased and other reasons occur, the leased or other income will be credited to the designated account; The bank guarantees that the funds in the account shall not be misappropriated by the borrower at will, and the lender may use the funds in the account to offset the loan when the borrower fails to pay off the debts due. For the rental income from the right to use the leased land, the lender may also sign a tripartite agreement with the borrower and lessee. In the agreement, the borrower gives up the land rent, and the lessee promises to pay the rent directly to the lender.

To sum up, we believe that the pledge guarantee of land usufruct is not feasible, and the land reserve institutions in various places do not need to consider the pledge of land usufruct for loans to land reserve projects.