农村土地 “三权分置”下的承包合同研究
Research on Contracting Agreement Under Background of Separation of Three Rights for Rural Land

在现行法中，承包合同是土地承包经营权取得的依据。由于不同承包方式取得的土地承包经营权的定位不同，家庭承包和其他方式承包中的承包合同在主体、客体、内容及订立程序等方面存在重大区别。在农村土地“三权分置”的背景下，承包合同应当被明确为土地承包权的取得依据，是农户享有土地承包权的实现途径，土地承包权自承包合同生效之日起设立。承包合同的制度设计主要包括法律适用、规范内容和立法模式三个方面。承包合同不能适用《合同法》，应当由《农村土地承包法》规范，从而确定农村集体经济组织与农户是承包合同的主体，规定土地承包权的期限和内容，明确农户消亡是承包合同消灭的原因之一。在其他方式承包中，承包合同没有必要存在。家庭承包中，农村集体经济组织通过划拨方式，将土地经营权给予享有土地承包权的农户；“四荒”土地经营权，由农村集体经济组织通过出让方式给予土地经营权人。
The land contract and management right drives from contracting agreement in current law. There are significant differences in the aspects of subject, object, content and conclusion procedure between contracting agreement in household contract and contracting agreement in other way of contract, because land contract and management rights are located in different positions and in different contracting methods. Under the background of separation of three rights of rural land, the land contract right should drive from contracting agreement, which should be the way of farmer household enjoying land contract right. The land contract right should be established on the date of execution of contracting agreement. The system design of contracting agreement mainly includes application of law, standard content and legislative mode. The contract law cannot be applied to contracting agreement, which should be regulated by rural land contract law. The parties to contracting agreement should include rural collective economic organization and farmer household. The term and content of land contract right should be provided. The demise of farmer household should be one of the reasons of discharge of contracting agreement. There is no need for contracting agreement in other way of contract. Through the way of allocation, the rural collective economic organization should give land management right to farmer household enjoying land contract right in household contract. The rural collective economic organization should give management right of rural land such as barren land to holder of land management right by the way of assignment.