“三权分置”视野下土地经营权性质的再探讨

Rediscussion on the Nature of Land Management Right from the Perspective of “Separation of Three Rights”

摘要: “三权分置”立法表达下，土地经营权性质模糊。首先，土地经营权物权说、债权说和二元论都能得到相应法条、学理和实践意义支撑。其次，从土地经营权的立法目的、公示原则、立法逻辑和“三权分置”的内在机理来看，土地经营权物权论明显强于债权论。最后不宜按照登记和期限对土地经营权性质进行物债区分。

Abstract: Under the legislative expression of “separation of three rights”, the nature of land management rights is fuzzy. First of all, the theory of real right of land management right, creditor’s right and dualism can be supported by corresponding laws, theories and practical significance. Secondly, from the legislative purpose of land management right, the principle of publicity, the legislative logic and the internal mechanism of “three rights separation”, the theory of land management right is obviously stronger than the theory of credit. Finally, it is not appropriate to distinguish property debt according to the nature of land management right according to registration and term.