农地“三权分置”改革的私法逻辑
Analysis of the Reform on “Separation of Ownership, Contracted and Management Rights of Rural Land”: From Perspective of Private Law Logic

“三权分置”土地改革的理论动因来自于经济学界，而非法学界。对“三权”法律关系的厘清不能僭越现有大陆法系私法的概念和逻辑体系。应当将对绝对所有权概念的坚持作为基础，拒绝借用普通法系的地产权和保有概念。“双重物的用益”和“物的用益—权利的用益”体系框架存在法律逻辑上的矛盾，不宜采纳。“物的用益—用益权的行使”和“成员权—物的用益”框架各具利弊。“经营权流转”的法律本质是通过债权实现物权和资本的结合。放宽物权性流转限制是当前改革的主要方向。户籍制度和社会保障体系改革是土地权利私法化改革的基础。
The theoretical reasons of rural land reform stem from economics rather than jurisprudence. The interpretation of relationship between the ownership, contracted and management rights of rural land should be confined to the conception and logic system in civil law. It is the conception of ownership, instead of estate or tenure in common law system, which constitutes the premise of the analysis. There are some logical inconsistencies in “Double Usufructuary Rights in Rem”structure and “Usufructuary Rights in Rem Usufructuary Rights in Right”structure. Both the “Usufructuary Rights in Rem Exercise of Usufructuary Rights”and the “Membership Rights Usufructuary Rights in Rem”have their virtues and faults. The legal essence of “Circulation of Management Rights” is the combination of real right and capital. Putting fewer restrictions on circulation based on real right is the trend line of current reform. Reforms on household registration system and social security system are crucial to the reform of rural land to private law.