The Research On Collective Security Of Members' Achievement Through Private Law

At present,our country has a biased understanding of the essential attributes of collective ownership,that is,collective ownership is a purely civil right.Under the socialist public ownership,collective ownership of collective ownership has dual attributes of both private rights and social security rights.The collective social security right of the collective members of the peasants is the inevitable requirement of the social security right of collective ownership.The collective social security right of the collective members of the peasants refers to the right of farmers as collective members to obtain security interests from the collective members in order to guarantee their survival.The main body is as a member of the collective farmers,its content is to obtain social security benefits from the collective,the path includes:determining the collective members of the collective social security right qualifications;the use of collective ownership object especially land;collective income distribution benefits.The difference between the collective social security rights of the collective members of the peasants and the right to social security of the peasants lies in the different rights.The three rights of farmers,namely the right to contract management,the right to use the homestead and the right to distribute the collective income,are all the realization forms of collective social security rights of the farmers' collective members under the rule of law.The premise of realizing the collective social security rights of the collective members of the peasants lies in the determination of their main body qualifications.As for the determination of the qualification of collective social security rights of collective members,the current problem in our country is the lack of unified legislation at the national level,and the practice of different parts of the country adopts a diversified definition standard of subject qualification.These standards include the standard of household registration,the standard of habitation,the standard of rights and duties,the standard of social security and so on.Among the above standards,the household registration is the main standard to identify the collective social security rights of the collective members of the farmers.However,the main body qualification of collective members' social security rights defined by household registration standard is contrary to the trend of China's urban-rural integration development.The main qualification of collective members' collective social security rights should take the attribute of social security of collective ownership as the logical starting point.Collective ownership is essentially the right of a collective member to provide social security interests for its members.Accordingly,the collective qualification of collective members should be adopted according to social security standard.That is to say,whether the farmers should enjoy the collective guarantee interests generated by the constituent elements of collective ownership as the main body qualification of the collective social security rights of the members of the collective.No matter the right of land contractual management or the right to use homestead is the way to realize collective collective social security right of peasant collective members.They are both private right and social security right.The shortcomings of our current land contractual management right and the right to use the homestead are based on the excessive strengthening of the private right attribute and the autonomy of the right body,and thus improperly weaken the attribute of social security right.In the future,the system of land contract management and the right to use homestead should also take the attribute of social security as the legal basis for legislative perfection.The right of land contract management and the right to use homestead can not be obtained by the main body of the collective members through inheritance.For the peasants who do not need the interests of collective ownership as survival guarantee,the members have the right to recover their contractual right of operation and the right to use the homestead.The national legislation should clearly stipulate the passage of the absolute majority of the collective members,and the collective can adjust the contract land to guarantee the basic survival guarantee of the landless members.If the land cannot be adjusted,the law should stipulate that the collective has the right to collect certain rent to the households that occupy the contracted land to make up for the collective social security benefits that the landless members can't get.Under the condition that the term of land contractual management right is unchanged for a long time,members have the right to collect certain proceeds from land contractual management right and make up for their collective interests.The right to use the homestead with the right of social security can only be transferred within the collective.It collects fees for the members and families of the homestead and collects fees to make up for the family members whose housing area is less than the average standard.The right of collective income distribution is another form of realization of collective social security rights of the collective members of farmers,which has dual attributes of private rights and social security rights.At present,the typical form of collective income distribution right in our country includes the distribution of collective business construction land,the distribution of value-added income and the income distribution of collective land expropriation compensation.The collective social security rights system of the two collective income distribution rights type farmers' collective members should be taken as the logical starting point for the implementation of their social security rights.We should adhere to the principle that interests should be taken into account,but the interests of the collective and individual interests should be tilted,and the balance between regulation and autonomy should be balanced.According to this,the legislation should clearly specify the external distribution of the above two kinds of collective land value added income,the proportion of the government should not exceed 50%.On the internal distribution system of the above two kinds of collective land value-added income improvement,legislation should be clear:first,the members of the collective must extract a certain proportion of the value-added income as retained by the collective,that the law should prohibit members of collective collective land value-added income distribution to all members;second,the specific use scope retained by the collective.That is to clear the reserves can only be used to make up the lost ground,to the members of the collective land revenue,due to the development of public welfare or to aid troubled members of the collective.Thirdly,according to the principle of separation and mutual restriction between decision-making power,executive power and supervision right,we should improve the distribution mechanism of collective income.Forth,it clearly stipulates that collective income distribution disputes should be included in the scope of judicial remedies.