Financing guarantee refers to the principal and interest repayment guarantee provided by the guarantor for the insured to finance the beneficiary. Financing methods include: borrowing, issuing securities other than stocks, overdraft, deferred payment and credit line granted by banks. The following is what I have carefully prepared for you: the ownership of contracted farmland planting seedlings and related papers on financing guarantee. The content is for reference only!

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It is of great significance to explore and study the development strategy of non-public forest seedlings to promote the development of forest seedling industry. In practice, it is very common for farmers to use their own cultivated land or leased cultivated land to plant seedlings, which greatly enriches and perfects the development model of forest seedlings in China, is conducive to the formation of a good situation in which countries, collectives, individuals and enterprises develop forest seedlings at multiple levels, and promotes the circulation and redistribution of talents, funds, technology and other resources. However, due to some legal obstacles in the ownership of seedlings, it is still difficult to use seedlings as collateral for financing. For example, how to identify the behavior of farmers planting seedlings on contracted farmland, how to identify the relationship between seedlings and their attached farmland, and how to realize the ownership and mortgage guarantee of seedlings. Only by solving the above problems can farmers develop seedling industry, buy and sell seedlings, mortgage financing with seedlings and other related behaviors be legally guaranteed and realize leap-forward development. ?

I. Legislative Practice and Legal Interpretation

Legal provisions of seedlings

1, legislative practice of seed supervision.

On June 65438+February 1 day, 2000, the Seed Law of People's Republic of China (PRC) came into effect. Since then, various localities have successively formulated the supporting laws and regulations of the Seed Law, and the State Forestry Administration has successively promulgated the first batch of main forest trees, the measures for the management of forest tree seed production and operation licenses, the measures for the examination and approval of main forest tree varieties, and the measures for the management of forest tree seed quality. The competent forestry authorities of all provinces, autonomous regions and municipalities have formulated and promulgated more than 200 supporting laws and regulations and more than 200 local standards in light of local conditions, and a legal system for seedlings with the Seed Law as the core has basically taken shape.

2. Seed Law and Forest Law.

Article 2 of the Seed Law stipulates that "the seeds mentioned in this Law refer to the planting materials or propagation materials of crops and trees, including seeds, fruits and roots, stems, seedlings, buds and leaves." According to the law, seedlings should be regulated by the seed law. Article 2 of the Forest Law stipulates that "the cultivation, cutting and utilization of forests and trees and the management of forests, trees and woodlands within the territory of People's Republic of China (PRC) must abide by this law." Judging from the legal provisions, seedlings and trees are regulated by the above two laws respectively. However, in practice, the seedlings planted by farmers on cultivated land often have the characteristics of high seedling height, large area and suitable for afforestation compared with the trees cultivated for the first time by enterprises or state-owned forest farms, and there is no obvious difference between them.

3. How to define the seedlings planted by farmers?

On the legal level, the seed law should apply to the seedlings planted by farmers on their cultivated land, which does not belong to the scope of forest law. First of all, the original intention of farmers to plant seedlings is to make profits by cultivating improved seedlings and eventually selling them. Their planting behavior is obviously profitable and short-term, and the behavior of farmers planting seedlings should not be regarded as afforestation. Secondly, the behavior of farmers planting seedlings on cultivated land is based on cultivated land, and there is no destruction and utilization of existing forest land, which does not belong to the behavior of "planting trees on contracted existing forest land" as stipulated in the Forest Law. Thirdly, in order to meet the standard of "forest" stipulated in the Forest Law, the cognitive conditions of "forest" should be met in terms of plant height, territory, area and spacing, and it should be different from seedlings in sensory cognition.

Second, how to characterize the behavior of farmers planting seedlings on cultivated land?

1, whether farmers' planting behavior belongs to seedling production behavior.

The seed law implements the management system of "four certificates and one sign" for seed production and operation. Articles 20 and 2 1 stipulate the licensing system for commercial seed production and the conditions that units and individuals should meet, such as having funds and production and inspection facilities suitable for seed production. Judging from the regulations, the provisions of the Seed Law on seed producers are intended to strictly supervise the primary breeding behavior of primary seed producers. Primary producers mainly include production units and enterprises that can carry out experimental seed production, professional development and testing; The first reproductive behavior is the behavior of collecting seed particles, buds and fertile roots from the mother tree for commercial reproduction and cultivation.

In practice, the seedlings planted by farmers on cultivated land are basically commercial seedlings that have been successfully cultivated in the early stage and reached a certain height, generally ranging from more than 30cm. Their sources are mainly state-owned forest farms, nurseries and seedling production enterprises. Therefore, it is inappropriate for farmers to plant seedlings as stipulated in Article 20.2 1 of the Seed Law, that is, to identify farmers who plant seedlings as seedling producers.

2, whether the behavior of farmers planting seedlings belongs to business behavior.

Article 26 of the Seed Law stipulates that seed business in China should be licensed, and articles 29-38 stipulate the relevant conditions for seed business. Judging from the content of Article 29, the provisions such as "having personnel who can correctly identify the seeds they handle, check the quality of seeds and master the techniques of seed storage and preservation" clearly point out that the target of regulation is professional operating institutions or individual industrial and commercial households such as companies and enterprises that have business premises and specialize in seed sales, and farmers who raise seedlings should not be regarded as seed operators.

3. Whether the behavior of farmers planting seedlings belongs to self-propagation and self-use behavior.

Article 27 of the Seed Law stipulates that "the surplus of conventional seeds for farmers' self-reproduction and self-use can be sold and exchanged in the bazaars without a seed business license ..." This article does not limit the concepts of "self-reproduction and self-use" and "conventional seeds". However, literally speaking, the seedlings planted by farmers are generally large-scale and commercialized, and the seedlings purchased are not propagated by farmers themselves, nor are they for their own use, so it is not appropriate to identify them as "self-propagation and self-use". At the same time, the primary seedlings purchased by farmers are mostly pine, cypress and other forest species replaced by the first batch of main forest species catalogues, and should not be considered as conventional seeds of apricot and poplar in front of the house. Therefore, the provisions of Article 27 of the Seed Law should not apply to the behavior of farmers planting seedlings in plots on cultivated land.

4. Whether the behavior of farmers planting seedlings is applicable to Article 39 of the Seed Law. Article 39 of the Seed Law stipulates that "seed users have the right to buy seeds according to their own wishes, and no unit or individual may illegally interfere." Combined with the above analysis, the behavior of farmers buying seedlings and planting them should be recognized as the behavior of "buying seeds" and using them. Farmers who buy seeds and plant them on cultivated land for the second time shall be recognized as primary seed users of seedlings and have the right to buy and use seeds according to their own wishes.

5. The legal dilemma faced by farmers in planting seedlings.

From the above analysis, it can be seen that the behavior of farmers planting seedlings and selling them on cultivated land is still within the adjustment scope of the Seed Law, but it does not conform to the production behavior and business behavior stipulated in the Seed Law, that is, the behavior of farmers planting and selling seedlings on cultivated land is not restricted by the Seed Law, nor does it need to meet the conditions that seed producers and operators should meet, so the Seed Law is specifically applicable.

The author thinks that the behavior of farmers buying primary seedlings and planting them on contracted farmland is a process of secondary cultivation of seedlings with low survival rate, which are not suitable for direct afforestation and greening. After several years, they will be cultivated into agricultural "products" suitable for afforestation and greening, which is of great practical significance to returning farmland to forests, ecological protection, environmental greening and farmers' prosperity, and should be encouraged and protected. Under the existing legal framework in China, farmers' purchase of primary seedlings should be regulated by the seed law. The seedlings planted by farmers for the second time on their contracted farmland should be treated as farmers' special agricultural "products" in combination with the relevant provisions of the Agricultural Law, and the relevant provisions of the Seed Law cannot be simply and directly applied to regulate them. Instead, we should start from the value choice of protecting farmers' rights and interests and encouraging farmers' enthusiasm for seedling raising, formulate local laws or policies to guide them, and make up for the blind spots and shortcomings of the existing legal system.

Third, how to define the relationship between seedlings and their affiliated farmland?

1. Is it illegal to plant seedlings on cultivated land? China's "Land Management Law" clearly stipulates that the state formulates the overall land use plan, defines the land use, and divides the land into agricultural land, construction land and unused land. Strictly restrict the conversion of agricultural land into construction land, control the total amount of construction land, and implement special protection for cultivated land. Therefore, units and individuals who use land must use land in strict accordance with the land use defined in the overall land use planning.

Article 19 of the Land Management Law stipulates that "the principle of overall land planning:

1 Strictly protect basic farmland and control the occupation of agricultural land by non-agricultural construction;

2. Improve the land utilization rate;

3. Make overall arrangements for land use in various regions;

4. Protect and improve the ecological environment and ensure the sustainable use of land;

5. The occupation of cultivated land is in balance with the development and reclamation of cultivated land. The second amendment of China's agricultural law in 20 12 stipulates in the second paragraph of article 3 1 that "the state establishes a farmland protection system and implements special protection for basic farmland according to law."

Article 17 of China's Land Contract Law stipulates that "the contractor shall undertake the following obligations:

1 Maintain the agricultural use of the land and not use it for non-agricultural construction;

2. Protect and rationally use the land according to law, and shall not cause permanent damage to the land;

3. Other obligations stipulated by laws and administrative regulations. "

Judging from the existing laws and regulations, China implements special protection for cultivated land. After contracting cultivated land, farmers have the obligation to maintain the agricultural use of cultivated land, and may not use it for non-agricultural construction or cause permanent damage to cultivated land. In practice, the behavior of farmers planting seedlings on contracted cultivated land has not changed the agricultural use of cultivated land. At the same time, because the root system of seedlings is shallow, they are generally sold after 3-5 years of planting, and because farmers generally take good care of seedlings, they are relatively considerate in fertilization, watering and weeding, and will not cause permanent damage to cultivated land. Therefore, from the practice and legal provisions, the behavior of farmers planting seedlings on contracted farmland does not violate the agricultural law, land contract law and other relevant laws and regulations, and its behavior belongs to legal agricultural production behavior.

2. Ownership of cultivated land with seedlings. Article 3 of China's Land Contract Law stipulates that "the state practices the rural land contract management system. Rural land contracting adopts household contracting within rural collective economic organizations. Rural land such as barren hills, ditches, hills and beaches that are not suitable for household contracting can be contracted by means of bidding, auction and public consultation. " Article 4 stipulates that "the State shall protect the long-term stability of rural land in contract relationship according to law. After the rural land is contracted, the nature of land ownership remains unchanged. The contracted land may not be bought or sold. " Judging from the legislative practice, the household contract responsibility system and farmers' land contractual management right currently implemented in China are based on the contract of joint production, and the contract signed with farmers collectively belongs to the creditor's right relationship. Farmers have the right to manage their contracted farmland, but they have no right to dispose of it. The ownership of farmland contracted by farmers belongs to rural collectives.

3. Whether the cultivated land attached to the seedlings can be mortgaged. Article 184 of the Property Law also prohibits the ownership of cultivated land, homestead, private plots, private plots and collectively owned land use rights as collateral. Paragraph 2 of Article 37 of the Guarantee Law stipulates that "collectively owned land use rights such as cultivated land, homestead, private plots and private plots shall not be mortgaged." Article 184 of the Property Law stipulates that "collectively-owned land use rights such as cultivated land, homestead, private plots and private plots shall not be mortgaged, except as provided by law."

Article 52 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Guarantee Law of People's Republic of China (PRC) stipulates: "If the parties mortgage the crops and the land use right that has not been separated from them at the same time, the mortgage of the land use right is invalid. Article 15 of the Supreme People's Court's Interpretation on Applicable Legal Issues in the Trial of Rural Land Contract Disputes stipulates that "if a contractor mortgages or pays off debts with his land contract management right, it shall be deemed invalid. If the parties are at fault for the losses caused thereby, they shall bear corresponding civil liabilities. "Therefore, from the perspective of legislation and judicial practice, the cultivated land contracted by farmers cannot be used for mortgage or debt repayment. ?

Fourthly, the nature of "things" of seedlings and the establishment of mortgage.

1. How to identify the attributes of "things" in seedlings? Real estate refers to tangible property that cannot be moved according to natural nature or legal provisions, or that will change its nature and damage its value after moving, including land and its fixtures, including physical entities and their related rights and interests, such as buildings and plants growing on land. There are two theories about real estate in jurisprudence: separation theory and absorption theory. In the definition of movable property and immovable property, the international community does not simply take whether it can be moved or devalued as the only criterion to define movable property and immovable property, but comprehensively considers the value of things, the legal elements of property right change and other factors. At the same time, movable property and real estate can sometimes be transformed into each other. For example, the fruit on the fruit tree in the orchard is real estate when it is hung on the fruit tree, and it will become movable property after it is picked.

When defining real estate and movable property, we should consider the standard of "integration" in addition to the property of things, that is, everything with immovability is real estate. This is also reflected in China's legislative practice. Article 2 of the Property Law stipulates that "the things mentioned in this Law include immovable property and movable property." Article 92 of the Guarantee Law stipulates that "the real estate mentioned in this Law refers to land, houses, trees and other things fixed on the ground. Movable property as mentioned in this Law refers to things other than immovable property. "

Therefore, from the legislative practice of our country, seedlings, which are "fixed objects" attached to the land, should be recognized as real estate.

2. Set the seedling mortgage. According to the provisions of Articles 180 and 185 of the Property Law and Articles 34 and 38 of the Guarantee Law, the mortgagor and the mortgagee shall conclude a written mortgage contract to establish the mortgage right on the seedlings, and the mortgage contract requires the mortgagor to prove his ownership or right to use the collateral.

3. How to realize the ownership of seedlings? Through the interpretation of the provisions of Articles 14, 16 and 17 of the Property Law, it can be seen that the state adopts compulsory protectionism for some real estate rights, that is, for the establishment/creation, alteration, transfer and extinction of such real estate rights, the state requires the obligee to register and confirm the rights through legislation. The typical representatives of this kind of real estate ownership certificate are real estate license, forest right certificate and land use right certificate. For another part of real estate rights, the state does not enforce protection, that is, for the establishment/creation, alteration, transfer and elimination of such real estate rights, the state does not require the obligee to register in legislative practice, but recognizes the de facto ownership status. There are two main forms to realize this real estate right: one is the active form, that is, the obligee takes the initiative to prove his real estate right, and its ownership certificate can be the certificate of the * * * department, the certificate of the natural person, the certificate of the rural collective organization and so on. The other is the passive form, that is, the publicity or non-publicity of the real right of this kind of real estate. When a third party claims the ownership of real estate, the third party will prove it.

Therefore, for the real estate of seedlings, the law does not stipulate the registration of property rights. When the owner sets the mortgage on it, he can show the ownership of the seedlings through the initial purchase contract, the documents of the * * * department, the documents of natural persons and the documents of rural collective organizations. Simply put, when a natural person claims the ownership of seedlings on a cultivated land, he can prove it by issuing a certificate in the local township government or village collective organization, inviting several villagers to testify, and issuing his seedling purchase contract and related payment vouchers. If the mortgagee has doubts about this, he can ask the mortgage registration agency to make a certain form of publicity to prove whether there is a third party claiming rights.

4. Registration when seedlings are mortgaged. Through the interpretation of the provisions of Article 187 of the Property Law and Article 4 1-44 of the Guarantee Law, it is not difficult to draw a conclusion that, as far as seedling real estate is concerned, firstly, it does not belong to the scope of "forest" adjusted by the Forest Law, and the provisions of Article 42 of the Guarantee Law should not be used, but should be applied. When the mortgagor issues his own certificate of ownership of the seedlings according to the provisions of Article 44 of the Guarantee Law, it can be achieved by issuing a certificate in the local township government or village collective organization, inviting several villagers to testify, and issuing his own seedling purchase contract and related payment vouchers.

Value evaluation of five kinds of seedlings

Judging from the legislative practice, at present, only the Trial Measures for the Registration of Forest Resources Assets stipulates the evaluation method of forest resources assets. However, the qualification required by this method is too high, and the evaluation agencies established in various places have not clearly defined the special forestry resource types of seedlings. Nursery stock assets evaluation can generally be realized through market evaluation, that is, the existing assets evaluation institutions and accounting firms and other third-party service institutions can carry out forestry assets evaluation business. Therefore, the assets evaluation of seedlings can be realized by the relevant right holders through the general social evaluation institutions.

To sum up, under the existing legal framework of our country, the behavior of farmers planting seedlings on their contracted farmland belongs to legal agricultural production activities. Its ownership of seedlings and the security interest based on seedlings can be completely realized, and its asset evaluation is also operable. There are no legal obstacles for farmers to set mortgage guarantee and finance their second seedlings. ?

Second, the seedling mortgage financing policy recommendations

Direct mortgage financing with the seedlings they planted.

Under the existing legal framework, this behavior can be realized through the following processes: issuing certificates in local township governments or village collective organizations, inviting some villagers to testify, and issuing their seedling purchase contracts and related payment vouchers to prove the ownership of seedlings. -Sign a mortgage contract with banking financial institutions-register the mortgage with the local notary office-complete the financing. From the theoretical and legislative practice, there is no legal obstacle to realize this process, but from the practical point of view, banking financial institutions bear greater risks and harsh loan review conditions, making this financing behavior difficult to achieve.

Second, strengthen rural credit infrastructure construction and actively issue small credit loans.

We should actively construct the "four mechanisms" of rural credit system construction, namely, rural credit information collection mechanism, rural credit system evaluation mechanism, credit reward and punishment mechanism and rural credit utilization mechanism. On this basis, explore the establishment of rural microfinance centers, and actively promote the issuance of unsecured micro-credit loans and farmers' joint guarantee loans to seedling growers who meet the evaluation conditions of credit users.

Popularize and apply the loan model of "company+base+farmer"

The nursery stock company signed the nursery stock directional procurement contract in advance. Farmers are responsible for the planting and management of seedlings, ensuring the quality of seedlings and bearing the risk of loss and damage of seedlings; According to the contract, the seedling buyer will buy the seedlings planted by farmers after the seedlings grow to meet the specifications and quality requirements agreed in the contract; The buyer of seedlings evaluates and negotiates the market value of seedlings with farmers according to the market situation. Based on the directional purchase contract of seedlings, farmers negotiate with seedling buyers, who provide guarantees for their financing behavior and rapidly expand reproduction through financing funds.

Fourth, improve the rural credit guarantee system.

Referring to the practice of industrial enterprise guarantee companies, give full play to the platform role of the municipal guarantee association, give financial support to agricultural and rural guarantee companies, and encourage financial institutions to issue loans from agricultural enterprise guarantee companies, village-level farmer guarantee companies and farmers' joint guarantee loans. On the basis of mortgage guarantee for planted seedlings, farmers who plant seedlings form a joint guarantee relationship with a number of seedling growers for loan financing. The advantage of this model is that it greatly reduces the risk of loss and damage of seedlings, which is beneficial for banking financial institutions to realize creditor's rights and mortgage rights through joint guarantee between seedling growers.

Explore the development of "credit+insurance" products.

In view of the accidental injury risk of Miao farmers, the operation mode of "farmers+micro-loans+micro-insurance" is adopted. When banks issue small loans to farmers, they provide accidental injury insurance for the loan farmers. In view of the difficulty in financing farmers' seedlings mortgage, we actively explore the development of "farmers' policy pledge loan". Through financial subsidies, farmers apply for policy agricultural insurance from insurance companies with their own seedlings, and apply for small loans from banks with insurance policies as collateral. If the farmer cannot repay the loan due to natural damage or other reasons during the repayment period, the insurance company will repay the loan to the bank for the farmer within the scope of the loss.