Study On The Confirmation System Of Collective Land Ownership In Countryside

The collective ownership of land is one property law system of our country,that is gradually forming standard system of confirming the rights which is based on the Constitutional law and relies on many laws and regulations,while complementing local laws and judicial explanation.But there are systemic failure problems in confirming rights of collective ownership of land,such as confusion of right subjects and objects standard?complexity of the procedure of confirming rights.There is deep historical background and complex institutional environment in the process of forming regulation of collective ownership of land.In the early days of new China,rural land ownership by farmers was based on the pattern in the village as a unit.Rural collective land ownership kicked off for the risk of returning the small-scale farmer economy.In the period of agricultural cooperation,the concentrated affiliation and administrative power of rural land was strengthened,what caused the subjects diversification and objects fragmentation of rural land affiliation.After the reform and opening-up policy,the development of rural land ownership diversification couldn't unleash the administrative power to the collective land ownership.Property in land is a basic property system.The theory of property law and economic law,the civil and foreign law all manifest that clear property in land is both premised on effective use of China's rural land and need of giving full play to superiority of public ownership economy,worthwhile be necessity of property law system perfection.Collective ownership of land confirmation should be realized by confirming claims,which is based on one of property law.The theory of property law confirming claims and the specialization of collective ownership of land constitution might provide analytical framework to perfection of collective ownership of land confirming system.Subjects institutions of confirming collective ownership of land is standard legal system of collective ownership of land confirming proper subjects,including ownership subject and implement object of collective ownership of land.Current legislation stipulates the subject ownership of collective ownership of land in three kinds of villages?towns and small village group,what cause unclear affiliation of collective ownership of land.The subjects according with collective ownership of land should be simplified as farmer collective in minimum,being that collective ownership of land should be affiliated with farmer collective in small village group and with no small village group.Collective ownership of land is neither co-ownership,nor corporate-ownership.It is ownership altogether.Accordingly,legal attributes of collective ownership of land subjects would be unincorporated society,not be natural person or legal person.The affiliation of subjects is neither such farmers nor corporation aggregates,but collective subjects who are made up of farmers within certain community limits.Farmer collective is lacking independent personality,only be subjects ownership of collective land.Legislation need to substantialize main body personality of collective ownership of land.Self-governing local organizations as the least farmer collective organization,such as small village group and village committee,should be situation corpus of collective ownership of land,in the legislation background that "General Principles of Civil Law" give dominant position to rural collective economic organization and self-governing local organizations.Farmer collective who really play a role in rural collective economic organization should be situation corpus of collective ownership of land by collective economic organization as farmer collective in minimum.Objects institutions of confirming collective ownership of land is standard legal system of collective land distinction,including distinction between collective land and state land,or between collective land.The legislation about collective land distinction in our country has formed relatively abundant rules system.However,relatively complex current situation of the land ownership affiliation exists insufficient supply.Collective ownership of land affiliation has regional and universal characteristics,which could be perfected by drawing lessons from the theory of objects ownership distinction and original acquisition of land ownership in foreign civil legislation.By comparative analysis,the current legislation in our country lack regulations of land ownership acquisition by laws and government decrees.It is too simple in land ownership acquisition by possession.Therefore,the legislation should respond.First of all,divide “the land of city”,make clear the ownership affiliation of city land which has been built.Secondly,build collective land to summarize nationalized system,also consider collective legal rights of farmers.Thirdly,lead into standard system of farmer land distinction,provide institutional basis for optimized distribution of collective land.Fourly,establish presumption of rights of collective ownership of land,to provide distinction standard for unentitled possession of collective land in different situation.Finally,make clear the range of collective land,directly define “the land suited production team-owned ” as state-owned by legislation,and define “the land suited collective farmer-owned” as the minimum unit of farmers according to the actual usage.The procedure system about confirming collective ownership of land is to regularize the method of confirming collective ownership of land,including exercise path and relief path of confirming rights of claims.The current legislation adopts mechanism that has both administrative procedure and judicial procedure to solve the problem about confirming claims of collective land.Administrative adjudication in solving the problem confirming claims of collective land ownership has the advantage of business relativity?power consistency?program efficiency and low cost.Legislation provide different path to solve the problem about confirming collective ownership of land.The confirming dispute between the nation and farmers should be directly suitable for using judicial process.Different confirming dispute between farmers should adopt preface of administrative adjudication,to guarantee final review of judicial process.Farmer collective who refuse to accept the administrative adjudication of confirming collective ownership of land should choose administrative reconsideration procedure.The court should adopt administrative action or administration with incidental civil action according to the party claims,in the condition about judicial process of refusing to accept the administrative adjudication and reconsideration results.The legislation need to establish the system of collective member rights to guarantee the apply and request of collective ownership of land based on real meaning representation.If the farmer collective do the inappropriate meaning expression and infringe the legal rights and interests of the collective members,they can conduct prosecution and revoke the relatively decision.If the legal person of farmers' collective economic organization or grassroots self-governing organizations delay on exercising any right or do the express intention negatively,the legislation should follow the subrogation system in group law and give the collective members subject qualification.