The Research On Rural Collective Organization Members' Rights

The purpose of this paper could be divided into three levels. The basic level is with the purpose of searching the basic law of the order formation internal Chinese rural collective. Structure a standard system which could adjust the internal legal relation in rural collective with the concept, rule and principle of civil law. Taking research on legal order internal rural collective as entry point, I hope this paper could be taken as a paradigm reference in other researches on legal order internal special group in China; The further purpose of this paper is: to rethink the existing group law concept in Chinese civil law, inspire civil law researchers to study topics like properties, classification, legal status, as well as getting qualification as a group member, enjoying rights with paying more attention to the logic in a view of Chinese group law. Be able to study legal question in a systematic way; The ultimate purpose of this paper is: to raise a private law philosophy which adapts to the country's situation better. With research on the existing construction route of private standards, to establish evidence for legitimate criterion of private law standard. Provide a little dedication for the development and promotion of China private law.There` re four topics discussed in this paper. Topic about legitimacy foundation of private law standard special for adjusting the legal relation internal rural collective in China; Topic about the nature of rural collective member rights in China; Topic about subject of legal relation internal famer collective in China and topic about exercise, restrictions and deprivation of member rights of famer collective in China. This paper includes four chapters.The first chapter established the theory standpoint and logic starting point of the paper, namely, the legitimacy foundation of private law standard which governs the group order doesn't lie in institutionalizing the promise made by lawmaker to settle the interest internal group, but lies in that it provides a field where the group members could maintain their interest in a self-help way, encouraging group members about getting advantage in the game by making use of various uncertainties reasonably. At the same time, give the group the maximum freedom to award and punish its member further to activate continuous collective actions with structure. Based on the faith on methodological individualism, I think lawmaker can not hold all the knowledge for collective actions attended by its group members, what's less possible is to make exact judgment on what is the coming effect after various actions taken by group members based on different preferences. Therefore, it is unadvisable that the lawmaker forces the order which he thinks right to rural collective. The only thing lawmaker should do is to make sure the members who attend rural collective action don't destroy each other with illegal means and recommends his game rule which proved effective in practice to the rural collective. In this way, the rural collective will create a logical legal order according to actual situation naturally. Specific to rural collective in China, the formation of private law should adherence to the mentioned principles, meanwhile, thinking highly of the inherent characteristics of Chinese rural collective, following the generation logic of order internal Chinese rural collective, give full play to the initiative of collective member and adjust the legal relation internal rural collective with existing concept, rule and principle in civil law.In the second chapter, a discussion on right of rural collective member was not had immediately, it's because in a scientific right system, any kind of right either exists independently as a"parent right", or a"subsidiary right"belongs to a"parent right". Obviously, member right of rural collective member is a subsidiary right under member right. A common view platform is not there because research on member right in academic circles is very insufficient. This paper has to explain about member right to enable our research to have an exact orientation in civil law field. This chapter is focusing on discussing the connotation, nature, power and function, realization pattern, also institutional arrangement for member right in future's civil code. The view point that collective member's member right is neither public power nor empty civil right but a special member right with civil right property is also argued combining characteristic of rural collective member right. In current stage, it is a member right subordinating unincorporated organization in the legal system of member right in our nation, provided with strong personnel cooperation- related property and blacked out.In the third chapter, aiming at the defect in the study on existing two subjects involved in legal relation internal rural collective, which are rural collective and collective member, a discussion is launched. In terms of rural collective, with discussion about different concept on rural collective property, conclusion that rural collective is a rights and obligations subject relative to collective member instead of collective is the field where collective members exercise their rights is made. Meanwhile, proposal that rebuild rural collective to make them real bearer to undertake rights and obligations was raised. Including, suggestion that rural collective be allowed to decide its organization form relatively independently according to different situation. Define administration village collective as incomplete rural collective form, help to realize relatively free switch between different organization forms.; Standardize the form, authority and responsibility of rural collective institution based on existing collective autonomy experience. In terms of rural collective member, taking natural person and rural as an example, defect in the mechanism following which the qualification as a rural collective member is got and quitted is highlighted. As a proposal, the problem in the mechanism following which the qualification as a rural collective member is got and quitted could be solved through existing concept and rule, namely combine mutual assent and legal presumption.In the first half of the forth chapter, in terms of the inherent property of rural collective member, I analyzed rural collective member's participative management right, right to know and operation mode of disposition considering classification to member right studied above. Also, according to different properties for various rights, for questions such as like subject exercises right, essential condition for exercising right, way to exercise right and procedure for exercising right, suggestions to achieve a standard construction were raised. Coming to the second half of this chapter, legitimacy foundation of the concept that private laws allow rural collective to limits and deprives the right of its member was argued with taking private law philosophy and actual needs of rural collective in China into consideration. Identified the property of the action that rural collective limits and deprives the right of its member. Following the clue that rural collective limits and deprives the right of its member with different means, the behavior that rural collective deprives and limits the right of its member, also the boundary for the behavior that rural collective punishes its member were discussed one by one. The idea that"avoid collective member destroying the other members through an improper way sanction"was suggested to be the cardinal principles for judgment authorities when intervene in sanctions behavior on rural collective member.