中國大陸國有城鎮土地使用權出租與抵押之法律分析

Abstract

中國大陸在一九八八年進行土地使用權有償使用的法制改革，調整了過去土地無償無限期使用且禁止轉讓的諸多弊端。國有城鎮土地使用權由政府有償出讓後，可以依法自由轉讓，也可以進行出租和抵押，土地使用權的出租和抵押，活絡了土地的經營、使用，使土地得以資產化，對於土地市場的發展及土地利用效率的提升，都有極為正面的影響。本文即擬從法律的角度探討國有城鎮土地使用權出租和抵押的相關問題，並分析現有規範的優缺點，以為未來完善改革的參考。

In 1988, the Constitution of the PRC was amended. In places concerning land, the language of 「land use rights can be transferred according to the law」(Article 10) was added. In this manner, the framework of a separation between land ownership and land use rights was clearly set. The basic goal of land use reform is to “eventually turn land without cost and time limits into land with both cost and time limits.” The regulations further stated that the state-owned urban land use rights are independent economic rights. Within a certain time limit, the rights can be sold, exchanged, given as a gift, leased, or used for mortgages. Independent land leased and used for mortgages can not only benefit from the establishment of the land market but can also help to improve efficiency in the land used process. This study includes judicial problems of state-owned urban land use right leased and used for mortgages, and offers suggestions for change.