| The “three rural issues” is the core problem for the political, economic and socialconstruction of China all the time. Whether the agricultural production level and efficiencycan be improved consistently, whether the rural material and spiritual civilization can makeprogress persistently, and whether the rights and wills of peasants can be respected andrealized, have direct and essential impact on whether the political situation of China can keepstable, whether the national economy can develop healthily, and whether the society canbecome harmony. For this, the lesson from the failure of the Agricultural Cooperativemovement and the people’s commune movement, as well as the successful experience fromthe household contract responsibility system, has already provided powerful evidence fromboth positive and negative aspects.As it is said that “all the problems can be boiled down to the problem of men”, the coreof the “three rural issues” locates on the problem of peasant. Only can the peasants expresstheir wills smoothly, can their demands be realized fully and their rights be protectedforcefully, the problem of peasant means to be settled, from which the problems of village andagriculture would get the hope to be solved. It is in the need that a perfect organizationalentity plays the role of a bridge between the largest, obviously atomized population group ofChina and the government with a centralized system, which could organize the individualpeasants in certain areas, represent them to express demands to the government, to ask for theresources, rights and protection; this can also relief the burden of our government facing thehundreds of millions dispersed individuals at the same time, improve the negotiatingefficiency between the government and the individual peasant and lower the communicationalcost. As for the choosing of this kind of bridge, such as those organizations of political powerat the grass-roots level, the peasants’ professional cooperative organizations, the villagecommittees and the small village groups, they all have their inelasticity. Under thiscircumstance, after having been neglected for a long time, the rural collective economicorganization is stepping into the people’s horizon gradually. Based on the objective rule of“all the problems can be boiled down to the problem of men”, it is very urgent to strengthenthe systematic construction of the rural collective economic organization at present, amongwhich the most pressing concern is the construction of the system of collective economy organization members. In the members of the system, for the profit-seeking nature of humanbeings the right system of the members is no doubt to be the core concern for the relatedbodies. Now, what the regret is that the construction of the whole system of therural collective economic organization including the members of the system, not only lagsbehind, is not attached importance to, but also is with too many disputes and divergence in thetheory circle.Starting from the background the above mentioned and putting the member rights of therural collective economic organization as the focus and pointcut, this paper divides severalparts following below to illustrate the research, in order that it can contribute some humbleefforts to the settlement of the peasant problem or even the “three rural issues” of our country.The first chapter above all concerns on the organization fundament of the member rights.The dominant position of rural land property possessed collectively by the peasants will notbe changed for a long time, or it would shake the basic socialist ownership. However, due tothe defects of today’s peasant collective system and its practice, the operation of the collectiveeconomy has a low efficiency, also with a severe loss of collective property and the frequentharms to rights. For the measures, this paper proposes that the substantiation of peasantcollectivity by themselves and the legal personality perfection are not feasible in a near term,as well as the necessity of these two are not stressing. Premised by these two keepingfictitious continuously, it can be through the way that perfecting the peasant collective powersand the will agency system to promote the protection for the peasant collective interests. Tothe choice of the agent body, the organizations of political power at the grass-roots level andthe peasants’ professional cooperative organizations all have their inadaptability, which wouldlead the proxy contest to be the war between the organization of community autonomy at thegrass-roots level and the rural collective economic organization. One of the necessarypresupposition from which the proxy contest could obtain the final result is that the ruralcollective economic organization needs a clear connotation and scope as the organization ofcommunity autonomy at the grass-roots level does. On the contrary, the opinions about thisissue in the theory and practice fields of our country are very vague and confusing. In theopinion of this paper, the definition of the rural collective economic organization incontemporary China should adopt a narrow sense, which should be the concept below the“rural cooperative economic organization” and is independent from the organizations ofpolitical power at the grass-roots level and the organization of community autonomy at the grass-roots level. About its scope, it should be restricted in the village level and theinner-village level, in which the collective economic organization of the inner-village levelought to be the primary. Under the situation that the executive power has gradually evacuatedthe rural area and the time of integration of government administration with communemanagement has truly ended and so on, considering the effect about the organization ofcommunity autonomy at the grass-roots level taking the burden of the representation of thepeasant collective economy is far from perfect and the very low recognition of it, this papersuggests to definitude the prior agent position of the rural collective economic organizationfor the peasant collectivity at this stage in order to make the organization of communityautonomy at the grass-roots level accord with its role location and perform its proper dutyefficiently and attentively, which is also based on the writer’s judge about the true intentionof the legislators as well. And when the conditions mature in the future, its unique agentposition ought to be affirmed.The second chapter starts to pay attention to the connotation the member right, and itincludes the right subject, the definition, features and specific content of the right est. Themember of the rural collective economic organization differs from the member of theorganization of community autonomy at the grass-roots level. Natural person should be theonly type of member subject, also with the recognition that a household is one of the basicunit to exercise rights and perform duties, while legal person and other unincorporatedorganizations cannot become the members of the collective economic organization. It is notallowed to exert the restriction of age and civil capacity over the members in order to protecttheir basic protection rights. Then, upon the fundament of the discussion about the generalsense of the connotation and the nature of the member right, the member right connotation oftoday’s rural collective economic organization is defined combined with the characteristics ofthe collective economic organization. The paper suggests the nature of this member right isjust the same with the other member rights that it shouldn’t be classified into the range ofstatus right, property right or the mixed type of right but to belong to an independent righttype called the “member right(or community right)”, which focused on the status right in thepast while to put more emphasis on the property right in the future with the coordination ofmultiple elements. The nature of the member right at this stage presents comprehensiveness,diversity and multi-phased characteristic. The main reason why the changes happened indifferent phases is the acquisition of the land-use right. Next, the paper studies the characteristics of the member right and its differences from the member right in general sense,the member right of the organization of community autonomy at the grass-roots level, theshareholder’s right and the member right in the condominium ownership. Finally, it probes theinner structure of the member right. For this structure, it is supposed to be divided into twolarge parts that one is the property right and the other is the right serving for the property right,in which the connotation and the nature of the subordinate rights have been discussed too.The third chapter focuses on the acquisition and the loss of the member right. Underthese situations that there isn’t any rules being capable to totally absorb the judge standards ofthe acquisition and loss of the member right, that it is difficult for the NPC to legislatespecially for this issue and that the condition to promulgate the rural collective economicorganization law to solve the issue accessorily is not matured till now, the first half of thischapter proposes that the NPC or the Standing Committee of NPC should firstly authorize thestate council to enact the regulation of the membership of the rural collective economicorganization to cope with the urgent demand and ease the present situation with keeping thelegislative elasticity so that it can summarize experiences and make room for the futurelegislation. Based on the existed ideas and the total change of the urban-rural relationship andthe industry-agriculture relationship, according to these situations that the urban-ruralintegration reform which sets the reform of household registration system as its representativehas launched comprehensively, that the population and resources flow among areas andindustries is from prohibit to encouragement, of the economic and right-consciousnessawakening of the peasantry and their right requirements becoming pluralism day by day, thatthe functions of the rural collective economic organization, the peasant collective possessionand its yield function and the nature and capability of the member right of the collectiveeconomic organization have moved from singularity toward pluralism and complex, the lefthalf in this chapter proposes that the construction of the judge standards of the acquisition andloss of the member right should pursue three principle rules, which are the rules to lay equalstress on the protection for the legal rights of the minor vulnerable groups, the stateintervention of appropriation with the respect to the collective autonomy, on the protection forthe individual primary legitimate rights with the protection for the individual property rights,and on the promotion of agricultural production and operation, sustaining the order of theproduction and living with the respect to the individual pluralism of the production and livingrequirement and the promotion of the appropriate flow of the population and resources among areas and industries. After sublating the existed standards and adding new ones into it, thispaper suggests the acquisition and loss of the member right currently should implement thecomprehensive judge standards in which the basic security standard, the standard of theland-use right and collective autonomy standard are regarded as the core, as well as thehousehold registration standard being as an assist. The basic security standard with the mostextensive sphere is the most prior; the standard of the land-use right is just applied to limitedcircumstances, but in certain situations it is more prior than the basic security standard; as forthe collective autonomy standard, it is behind these two standards to be considered. In the end,the paper studies special situation in the acquisition and loss of the member right of the onesapplying for entrants who have paid the collective-setting consideration, children born outsidebirth-control plan, illegitimate children, the "out-married women", the men into his wife’shouse after their marriage, the ones having divorced or bereft the spouse, the ones afterretirement or going back to hometown after retiring, and the ones going out to do business orbeing migrant workers for a long period of time and so on.The forth chapter focuses on the core problem with more disputes triggered in the fieldsof member right use and remedy. In the first part of this chapter, for the issue of the member’squit right, the paper suggests the members should be endowed with the right to quit based onthe need of the rural-urban integration reform and the members’ pluralized pursue ofproduction and living. But to lower down the negative effects, the quit application should beproposed at least one year earlier; when quitting the right, the contracted land could only beinner transferred in priority or be traded back collectively unless the collective autonomyagree to transfer outside while the homestead doesn’t have this exception. For the exercise ofthe land use right, the paper suggests not to set the exercise expire any longer; it should be assoon as possible to establish and perfect the transfer market of the land use right and itspricing mechanism so as to promote the optimal allocation, the efficient use and the scaleoperation of rural land. As to the exercise of the homestead-use right, for it still belongs to thebasic security right the allocation of homestead should be implemented strictly to obey therule “one house one home”, and if there is no new household to be discreted, it would notallowed to ask for distribution or change of a new homestead. At the same time, thetransferred homestead is restricted strictly as the basic living use, and the transfer couldextends to the town itself at most. About the exercise of the distribution right of the othercollective property and income, the unborn babies should be taken special care and the ones going out to do business or being migrant workers for a long period of time should be treatedappropriately differently. For the exercise of the right to know and the right to participate theoperation, management and decision, it can be perfected through these measures likequickening the construction of the collective institution and the personnel allocation, takingthe other existed laws as the references, broadening the road of right exercise, detailing theduties and responsibilities of the subjects involved and putting them into practice. As for thelatter part of this chapter, the self-benefit remedy of the members, the paper hold the idea thatthe most important thing is the remedy of the membership. Judicial litigation is the onlyremedy method being preserved in the future, as the decisions for the disputes of the land useright from the town government, the competent department of agriculture and the arbitrationcommittee of rural land contract can be used as important assistant evidence for themembership litigation. In this way, it can conform to the inward system design and thestructure of power allocation, can promote the disputes resolved appropriately and efficientlywith no hinder to the future legislation in the field of the rural collective economicorganization. After the deprivation of the jurisdiction of the town government and thecompetent department of agriculture, the membership litigation, of course, belongs to the civilaction. The member representative action system should be established for the self-benefitremedy of the members. Meanwhile, with the rule of “exhaustion of internal remedies”, thenumber of the plaintiff that must reach some proportion, the measures as the courts canrequest the plaintiff to provide security interests, the possible negative effects to thecollectivity, the management layer and the other members would be prevented and reduced. |
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