建国以来中国农村土地经历了土地农民私有、自由经营、自由流转阶段:土地农民私有向土地集体所有、集体经营的过渡时期, 以及如今的家庭联产承包责任制阶段. 农村土地流转也经历了禁止、限制和法律规范三个阶段. 随着时间的推移, 农村土地制度也始终在不断的完善和改进. 依≪中华人民共和国农村土地承包法≫(以下简称≪农村土地承包法≫)和≪农村土地承包经营权流转管理办法≫, 土地承包经营权流转方式主要包括, 转包、出租、转让、互换和入股. 而在实践中, 各地的流转方式五花八门, 时常打法律的擦边球, 甚至超越法律的规定. 本文主要谈到了土地承包经营权转让、继承、抵押、再流转制度与反租倒包制度的合法性及解决对策. 土地承包经营权的转让存在要求过于苛刻及土地承包经营权通过转让进行流转的, 土地承包经营权的变动何时发生效力等问题. 土地承包经营权的继承存在现行法律对土地承包经营权的继承规定不明确, 且对于家庭承包方式获得的土地承包经营是否可以继承等问题. 解决方式为明确以家庭承包形式获得的土地承包经营权可以继承. 增加土地承包经营权的继承的限制条款. 关于抵押, 农民融资渠道有限, 因此应开放抵押, 但是因为农地关乎生存之本, 所以得加以适当地限制. 土地承包经营权的再流转就是承包农户把土地承包经营权流转给土地承包经营权受让人之后, 土地承包经营权受让人把土地承包经营权流转给第三人. 土地承包经营权再流转法律关系复杂, 必须界定清楚;并且应明确再流转法律关系当事人的权利义务. ≪农村土地承包法≫中没有包括反租倒包这种流转模式. 但是目前各地农村开始出现一定数量的反租倒包的实例, 并且一些学者认为反租倒包的土地流转方式的出现是必然的, 也是未来农村土地流转的趋势. 总之, 现行的关于土地承包经营权的法律还存在诸多问题, 找到问题的完善立法, 是改善农民生存, 提高土地利用效率的重要步骤, 是解决中国农村土地问题的重要前提条件.
Since the founding of the PRC, China's rural land has experienced the land farmers' private ownership, free operation, free circulation stage: Land Farmers' private ownership of land collective ownership, collective management of the transition period, and now the household contract responsibility system. Rural land transfer has also experienced three stages: prohibition, restriction and legal regulation. With the passage of time, the rural land system has been constantly improving and improving. According to the the people's Republic of China Rural Land Contract Law "(hereinafter referred to as the" rural land contract law ") and" rural land contract management rights transfer management approach ", land contract management right transfer including, subcontract, lease, transfer, exchanges and shares. In practice, all kinds of local circulation, often play legal edge ball, even beyond the provisions of the law. This paper mainly talks about the right to the contracted management of land transfer, inheritance, mortgages, and then transfer the legitimacy of the system and the anti rent Daobao system and countermeasures. The transfer of the right of land contract and management is required to be too harsh and the right of land contract and management through the transfer of the transfer of land contract operation rights and the change of the validity of the problem. The inheritance of the right to land contractual management is not clear about the inheritance of land contract management right, and it can be inherited and so on. The settlement of land contract management right in the form of family contract is clear. To increase the succession of the right to land contractual management. With regard to mortgage, farmers' financing channels are limited, therefore, they should be open to mortgage, but because of the existence of the land, it must be appropriately limited. The re circulation of land contract management right is the right of land contract and management right of land contractual management to the land contract and management right of land contract and management right of land contract and management right of land contract management right transfer to third people. The legal relationship of the right to land contractual management is complex and must be defined clearly; and the rights and obligations of the parties concerned should be clearly defined. "Anti rent this transfer model did not include in the" rural land contract law. But at present all over the country began to appear a number of anti rent Daobao examples, and some scholars think anti rent Daobao land transfer is inevitable, but also the future of rural land transfer trend. In short, there are many problems in the current law of land contract management right, to find the perfect legislation of the problem is to improve the survival of farmers, improve the efficiency of land use, is an important step to solve the problem of rural land in China is an important prerequisite.