Research On The Legal Mechanisms Of Fulfillment Of Collective Land Ownership

It is a basic topic that perplexes the academia in a long time that how to realize collectiveland ownership. It could not be analyzed by the traditional property rights theory, or judged bythe pure practices. In fact, collective land ownership is a “ownership” owned by the collectiveaccording to the Property Law of the People’s Republic of China. However, it is not clear thathow to realize collective land ownership in related law and policies. It is not valued by theacademia, the related researches is still weak. The collective is consists of all individualpersons, rather than independent legal subjects. Even so, this is not a reason to deny thenecessity of the implementation of collective land ownership. The file that named "Decisionof the CPC Central Committee on rural reform and development of a number of major issues"points out that the existing land contract relations should remain stable and be unchanged fora long time. In this context, a part of the individual persons have received little or no access tothe rural land-use rights. After the "santi wutong" was cancelled, these people have almost bedeprived of the chances to obtain the means of subsistence by participating in the incomedistribution in the collective. For this case, the implementation of collective land ownershiphas extremely important theoretical values and practical significances in avoiding substantialinjustice, realizing fair income distribution within the scope of the collective, etc.The essence of the implementation of collective land ownership is how to realize therights to possess, use, benefit from and dispose of the collective land entitled by law. Thesynergy of legal regulation and the member autonomy is a basic guarantee of theimplementation of collective land ownership. I believe that reform and improvement of thelegal mechanisms of fulfillment of collective land ownership have outstanding advantages ofoverall consideration of the related legal system and making up the missing of the main relatelegal mechanisms. Based on the above considerations, this thesis explores the main legalmechanisms of fulfillment of collective land ownership based on the value goals (such as theeconomic security, economic benefits and economic justice) and a fundamental objectives ofthe implementation of collective land ownership. Except for the introduction and conclusion,this thesis is divided into seven chapters, which can be roughly segmented into three parts inlogic. The first part is the chapter1, which mainly explores the nature of collective landownership and the present situation of the implementation of collective land ownership. The second part is the chapter2, which is the general conception of the legal mechanisms offulfillment of collective land ownership. It mainly discusses the realistic requirement ofimplementation of collective land ownership, the value goals, the basic functions, the basicprinciples, and the fundamental systems of this legal mechanisms. The third part includeschapter3to chapter7. This part mainly explores the legal mechanisms of the rights to possess,use, benefit from and dispose of the collective land.Chapter1is analysis of the basic nature of collective land ownership based on theanalysis of the relevant laws and policies in the historical changes, and clarify the presentsituation of implementation of collective land ownership. At present, there are clearprovisions that collective land ownership is the property right in private law. However, ourcountry has not yet set up the scientific, perfect legal systems and the legal mechanisms ofcollective land ownership. Under this background, the fulfillment of collective landownership is faced with many dilemmas, such as being lack of the related law of the subjectof collective land ownership, limiting the entitlements of collective land ownership excessive,the loss of the incomes of collective land ownership, and the lack of the related mechanisms.By the following reasons: deficiency reason of the related legal policy, the deviation of relatedtheoretical research idea, public power improper intervention, and the degradation of ruralculture, and so on.Chapter2aims to provide theoretical guidance for the implementation mechanisms ofcollective land ownership. In essence, the implementation of collective land ownership is thematerial benefits of the owner. In contemporary, it still has the need to achieve collective landownership. The research of the implementation of collective land ownership has outstandingcompatibility advantage in the perspective of legal mechanisms. At first, it should beestablished on these values including economic security, economic security and essence of fair.Under the guidance of value goals, the legal implementation mechanisms of collective landownership has many basic functions, such as political, social, economic, cultural and otheraspects. The realization of aboved value goals and the basic functions need to adhere thefollowing basic principles: the coordination of legal regulation and the rural autonomous, theinteraction of the legal protection and policy guide, the equilibrium of individual interests andthe collective interests.Chapter3explores the subject of collective land ownership and the mechanisms of therelated decision-making and implementation. The subject of collective land ownership is the collective in the normative sense and all individual persons in fact sense. The specialproperties of the subject of collective land ownership decided the necessary to establish thesubject for exercising the collective land ownership. Compared with the villagers’ committeeor villagers’ groups, the rural collective economic organizations has many advantages. It mostsuited to be the subject for exertion. At the same time, the villagers’ committee or villagersgroup still has a replacement value of the rural collective economic organizations. Under thismodel, the major matters of collective land ownership should be formed by the collectivemembers’ democratic meeting mechanisms. The collective decision-making should beexecuted by the subject for exercising collective land ownership. The general matters ofcollective land ownership are decided and performed by the subject for exercising collectiveland ownership.Chapter4studies the effective use of way of collective land ownership by the subject ofcollective land ownership. The subject of collective land ownership also enjoy the rights touse the collective land. However, this right also burden many important missions includingthe political, economic, social and other aspects. The realization of this right need to explorediscrepant realization forms of collective land ownership on the basis of the different valuesand functions owed by different types of collective land. In addition, the realization of thisright has certain internal relations with the joint-stock, it is practical and feasible forapplication of joint-stock in the realization of this right.Chapter5aims to set up the legal mechanisms of implementation and fair distribution ofthe proceeds of collective land ownership. The ius fruendi is a right for obtaining the proceedsof collective land ownership by the subject of collective land ownership in accordance withrelated law. There are different interests between the members of the collective and thecollective on collective land ownership. The collective need to guarantee the realization of theproceeds of collective land ownership, also participate in the proceeds distribution ofcollective land for the supply of public products within the scope of the collective. Themembers of the collective enjoy the ius fruendi. In order to protect the members’ ius fruendiof the collective, we need to turn it into legal right, and set up the proceeds distribution ofcollective land dominated by members of the collective.Chapter6mainly discusses whether the subject of collective land ownership shall enjoythe right of disposition and how to realize this right by legal mechanisms. The collective’sright of disposition is a legal right formed from the powers and functions of disposition. In the modern society under the rule of law, collective land ownership is responsible for therealization of certain values and functions, but it cannot become the basis of disavowal theright of disposition. The subject of collective land ownership also should be enjoy the right ofdisposition. To realize the right of disposition, we need to protect it from the subject ofexertion, the specific ways including the exercise plans, the boundary of this right, the way ofexertion, and the related legal supervision. Of course, the realization of this right is still areform of the gradual.Chapter7explores the prevention and cure mechanisms for the restriction of thefulfillment of collective land ownership. This right is derived from the exclusiveness ofcollective land ownership. Although the restriction of the fulfillment of collective landownership are aroused by many reasons and can be divided into many types, thegovernment’s public power and the rural collective organizations are the most typical types.To control government’s public power which is detriment to the collective land ownership, weneed to strengthen the scientific nature of the local government performance appraisal,enhance the recognition of government behaviors, and perfect the land management system ofcommon responsibility. To govern the rural collective organizations’ unlawful act which isdetriment to the collective land ownership, we need to clear the rural collective organization’rights and obligations, perfect the information disclosure system of the collective’s assetmanagement, establish the comprehensive supervision mechanisms dominated by themembers of the collective. At the same time, the prevention and cure mechanisms of therestriction of the fulfillment of collective land ownership also cover the direct lawsuit systems,derivative action prosecuted by the members of the collective, and the litigation supportsystems.