The Base Configuration Of Collective Land Ownership And Its Regional Differentiation

For a long time,the problem of collective land property rights management has been a hot issue in the academic and political circles.But the collective land ownership formed in the period of planned economy,however,has not yet found a suitable legal discourse expression system in the reform of the socialist market economy and the construction of the socialism legal system with Chinese characteristics today.The lack of theoretical achievements in the systematization of collective land property rights governance make it difficult to adapt to the practical requirements of the current urban and rural integration development in China.Based on the history and reality of the construction and development of collective land ownership in China,this study analyzes the relationship between collective members and collective organizations using the rights "transfer and reservation" paradigm.On the basis of this,we put forward the general legal structure of collective land ownership,taking the ownership of collective organization,the membership right of individual member and the autonomous right of membership group as three cornerstones.From the historical process of the construction of collective land ownership in China,under the strong imposition of the state will,the land rights form a split between the collective members and the collective organizations.All members must unconditionally transfer ownership of land to a collective organization while they form an association,and this transfer of landownership can not be retracted once completed.But at the same time,the collective members retain a part of land rights,among which,the right to be exercised by individual member is the membership right,and the right to be exercised by the membership group is the right of autonomy.Different from the integration of the internal and external relations of the right subject under private land system,after the formation of collective land ownership,from the meaning formation of the right exerciseto meaning execution,it must be divided into two different stages of independent legal action.The membership right of the individual is the main carrier of the meaning formation stage of collective land ownership exercise,ownership of the collective organization is the main carrier of the meaning execution of collective land ownership exercise and the right of autonomy is the axis of the stage ofmeaning formation and the stage of meaning execution.According to this,collective land ownership presents a basic structure shaped as"double stage and one axis".The "double stage and one axis" legal structure of collective land ownership presents different features in different stages of and backgrounds of social and economy development.Correspondingly,it also adapts to a different running management mechanism:In the general agricultural areas far away from the urbanization and industrialization process,the operation of collective land ownership is mainly to deal with the internal relations between collective organizations and collective members,lacking a space to participate in the external market relationship,so its management structure is suitable for the integration of government administration and economic management,and there is no need to set up a special collective economic organization.For the rural areas,which themselves are in the process of urbanization and industrialization,the external market space for the operation of collective land ownership begins to highlight,which not only requires the collective members to exercise the usufructuary right obtained by the membership right to participate in the allocation of market resources,but also require that collective organizations participate in the allocation of market resources in the form of exercising land ownership.Under this condition,the organizational carrier of collective land ownership is suitable for the government administration and economic management separation system,and the liquidity of the collective members itself should be enhanced moderately.For those urban villages that have been completely surrounded by cities,under the dual system of land ownership in China,there is no more than two ways to deal with the collective land in urban villages--generalization nationalization or direct market entry.Under the condition of nationalization of collective land ownership in urban villages,collective organizations need to exit or transform.Make a comprehensive survey on the time and space evolution process of China's collective land ownership,it shows two distinctive features:First,the existence of state will in the collective land ownership has not disappeared,which is reflected by the internal and external relations of collective land ownership in every historical stage and spatial differentiation area,and the intervention of state will is the fundamental cause of the collective land ownership regarded as a ownership of special legal person in China civil law.Second,with the deepening of the reform of the market economy,the collective land ownership presents an evolution trend of"from status to contract",which is also reflected in the internal and external relations of collective land ownership.But such an evolutionary trend is not without boundaries.The inseparable nature of collective land ownership is just where this boundary lies.