【作者】 吴振坤；

【导师】 唐烈英；

【作者基本信息】 西南政法大学 ， 民商法学， 2010， 硕士

【摘要】 土地制度是我国农村最基本、最核心的经济制度,是三农问题1的缩影。自1982年家庭承包经营制取代人民公社制后,国家不断对其调整和完善,土地承包期限由3年到15年到30年再到保持土地承包关系长久不变,土地调整由“大稳定,小调整”到“增人不增地,减人不减地”再到“截断小调整,将30年承包期稳上加稳”,2土地承包经营权由占有、使用、收益到享有部分处分权,3可以说,土地承包经营制度渐趋完善和成熟。在城市化、工业化进程中,农民进城打工现象普遍,地域流动性增强。农村土地趋向市场化、规模化、产业化经营,土地增值空间巨大,农民在集体中的成员权和个体地位受到重视。随着户籍制度改革不断深入,社会保障体系不断健全,城乡统筹一体化逐步开展,农民身份枷锁正逐渐打破,土地权利结构有待重构。对农村社会的新变化,立法变迁表现迟缓,法律将农户作为土地承包经营权主体,却未对其构成要件、运行机制、内部权利义务划分等作出规定,无法解决集体和农户、农户和农户之间的利益纠葛,难以建立起土地承包经营权的获得、退出机制,难以为农民和市民间实现身份转化提供便利。社会和立法现状构成笔者对论文主题的思考,理论乃实践之指导,只有从根本上理清农民和承包土地间的关系,明确土地承包经营权真正权利主体,方能解决城市化进程中农民权益保障问题。本文共分三个部分,约4万字。第一部分:家庭承包方式的土地承包经营权主体概述。首先介绍土地承包经营权的起源,其次对家庭承包方式的土地承包经营权及其主体概念进行阐述;最后针对法律未对农户进行界定的立法疏漏,综合学界观点,对农户的定义、性质、特征进行探讨,认为农户是指以血缘和婚姻关系为基础,以家庭主要成员居住生活在农村为特征,以原始籍贯在农村为表现,以农业经营收入为生活来源的组织体,性质上属于一种家庭合伙组织。第二部分:土地承包经营权主体确定为农户存在的法律问题。首先对立法概况进行梳理,得出土地承包经营权主体经历从公民到集体经济组织成员到农民再到农户的演变历程,最终确定为农户,具有一定的进步意义。其次指出农户作为土地承包经营权主体存在的问题:(1)土地承包经营权取得机制中,农地是按人数而非按户数分配,农地承包是基于土地承包权而非合同权利;(2)土地承包经营权丧失机制中,农民退出农村与退出承包土地时间不一致,农民或农户退出承包土地也没有任何激励机制,妇女因婚嫁原因退出农村将实质丧失土地承包经营权利;(3)土地承包经营权保护机制中,无地农民的数量正在迅速膨胀,其土地利益因“增人不增地,减人不减地”政策很难获得保障,无地农民和有地农民间的利益冲突愈发严重。最后指出在土地承包经营权不断稳定和长期化的今天,确定农户为土地承包经营权主体弊大于利,不利于农村社会稳定。第三部分:土地承包经营权主体制度的完善。该部分是全文核心,首先针对土地承包经营权主体确定为农户存在的法律问题,结合农村社会变化后的新情况,运用合伙制度原理和共同共有理论,将农户分为裂变前和裂变后两个阶段,对土地承包经营权的取得、保护、退出机制进行了制度建构,认为农户是承包土地的经营组织体,土地承包经营权主体应确定为农民。其次将农户内部成员对承包土地享有的权利定性为准共同共有权,分家析产时可以分割,认为农村土地应根据“大稳定、小调整,稳中间、调两头”方针科学建立调整机制,保护无地农民的土地权益。最后,对土地承包经营权的丧失机制进行完善,认为农民死亡后应收回其承包地重新分配,达到法定退休年龄应交回承包地,主动交回土地应实行奖励金制度,对落户小城镇和进城务工农民应保留其承包地,对因婚姻关系迁入、迁出人员,根据土地动态平衡原则实现土地重新分配。本文以民法基本原理为指导,结合客观社会实际,通过探讨农户和农民间关系提出自己见解,采用社会实证和比较分析方法,对家庭承包方式的土地承包经营权主体重新界定,对土地承包经营权主体进入、退出和保护机制构建上提出创新性意见,力求在土地承包经营权稳定基础上达到土地利益的公平分配。更多还原

【Abstract】 The land systems are the most basic core economic system and a microcosm of the three-agricultural-problems. Since the household contract responsibility system was established in 1982 and replaced the people’s commune system, the state has kept adjusting and improving them: The land contract term lasted three-year to fifteen-year to thirty-year and finally remained a long-term; the land adjustment policies is from the“overall stabilization and little adjustment”to the“do not increase the amount of land for the population growth and do not minimize for depopulation”to the“inhibit the little adjustment and keep the 30-year contract period stable”; the right of rural land contractual management included the right to possess, to use, to benefit and eventually extent to the right to disposed in some degree. That is to say the land contract systems are gradually improved and matured.In the urbanization and industrialization process, the peasants flowed into the city for a job is a common phenomenon, and that caused the geographic mobility enhanced. As a result, the rural land trends market-oriented, large-scale and industrialized operation, and there is a huge space of land value-added, as well as the rights for collective member and the status for individual is more and more emphasized. As the reform of household registration system is deepening, the social security system is continuously improving and the urban-rural integration is gradually advancing, the peasants’identification chains have been broke. Subsequently, the identity property of rural land is fading and it is need to rebuild the land right structure. However, the legislative branch responded sluggishly to the new changes in the rural society. The law defined the peasant household as the subject of the right to land contractual management, but lacked in providing the elements of the law, the operating mechanisms and the inner division of rights and obligations, etc. The law couldn’t figure out the conflict of interests on the collective to the peasant household and the peasant household to peasant. It is difficult to construct the access-exit mechanisms of the land contract management, so that it is little help for the identity transformation between the peasants and the citizens. All of those caused the author’s consideration on the thesis. As the old saying goes, practice guides theory. Only clarify fundamentally the relationship between the peasants and define the real subject of the right to land contractual management, it can protect the peasants’rights caused by the urbanization.This thesis is divided into three parts and contains more than 40,000 words. The first part summarizes the subject of the right to the household-basis contractual management of land. It consists of the following three parts: (a) the origin of the right to contractual management of land; (b) the summary of the right to the household-basis contractual management of land and the concept of the subject; (c) for the legal loopholes of the peasant household’s definition, on the basis of the academic viewpoints, probe into the household definition, nature, character and significance, and define the household as an organized body which based on the blood or marital relationship and lived on the income in agriculture, with characterized by the family key members living in rural areas and the original birthplace being there.The second part discusses the legal problems of defining the subject of the right to contractual management of land as the peasant-household. First of all, on the basis of sorting out the legislation, it gets into the consideration that defining the subject of the right to contractual management of land as the household makes great progress. Secondly, points out the problems of the peasant-household being the subject: (a) in the acquisition mechanism, the land is divided by the number of peasants rather than the number of households, and the land contract bases on the contract rights rather than the contractual rights; (b) in the exit mechanism t, the time of the peasants leave the rural doesn’t match with the time of the peasants return the land. There is lacking of the incentive for peasants or households returning the land, oppositely, the women substantively lose the right to contractual management of land by leave the rural for marriage; (c) in the protection mechanism, more and more peasants lose their land and their land right is difficult to protect which cause serious conflicts between the landless peasants and land farmers. Finally, it forms the conclusion that defining the subject of the right to contractual management of land as the household is more harm than good and it is not conducive to stabilize the rural society.The third part is about the improvement of the subject systems of the right to contractual management of land. This part is the core of this thesis. Firstly, for the legal problems of defining the subject of the right to contractual management of land as the household, combining the new situation in rural areas, on the principles of partnership and the theory of co-ownership, it is divided into two kinds of households by the different stages, and it sets up the system constructions in terms of the acquisition mechanism, the protection mechanism and the exit mechanism. The thesis points out that the household should be the organization body of managing the contract land, but the peasant should be the subject of the right to contractual management of land. Secondly, it defines the right of the members as quasi-co-ownership which can be divided when the family was separating and it calls for the adjustment mechanism to protect the landless peasants. Finally, it improves the exit mechanism and indicates that the peasant’s land should be recovered and be redistributed once he was dead and the land should be returned once the peasant reached the mandatory retirement age. It should implement the old age pension in agriculture, retain the contract for the peasants settling in small towns or working in cities and adjust the land according to the principle of land homeostasis for the migratory peasants because of marriage.Guided by the basic principles of Civil Law and combined with the social reality, the author formed his own opinion on the subject of the right to contractual management of land and put forward the innovative comments on establishing the entry, exit and protection mechanism, by exploring the relationships between the peasants and the households and using the social empirical analysis methods and the comparative analysis methods, to achieve the equitable benefits distribution on the premise of the consolidate the right to contractual management of land.更多还原