The Cancellation Right Of The Rural Collective Members

The cancellation right of the rural collective members refers to the right of requesting the people’s court to cancel the collective organization or the person in charge if they are considered to infringe the legal interest by the rural collective members. It has to a certain extent changed the status that the rural collective economic organizations, village’ committee and the person in charge can infringes upon the lawful rights and interests of the collective members without restraints. However, the Property Law has no complete provisions on cancellation right of the rural collective members with a lack of subject and no clear time limit for execution; at the same time, in the process of applying this right, there are different understands of the cause for cancellation and the objects of cancellation and there also are a variety of forms of judgment. All these problems not only weaken the authority of law, but also is not conducive to fully protect the legitimate rights and interests of the rural collective members. Thus, the right must be perfected.The paper firstly highlights the above problems through comparison, and then from tries to solve the problem from two aspects including theory and application. Under the guidance of this idea, the full text is divided into three parts to discuss the cancellation right of the rural collective members.The first part compares the cancellation right of the rural collective members with cancellation right of the oblige, cancellation right of shareholder and cancellation right of the owner, showing the differences of each cancellation right in the main body, time limit, cause for cancellation and cancellation objects to look for the breach of the problem and explaining the system that the cancellation right of collective members can draw lessons from.The second part mainly discusses the improvement of the theory of cancellation right of the rural collective members. The improvement mainly includes the main body of the right and the time limit. As for the main body: for the accuser, although it is prescribed in the law that only the group members can be the accuser in the lawsuit, the villagers group collective also should have the qualification of accuser in combination with the judicial practices, because with respect to village collective, the villagers group collective is also similar to collective members. But in the lawsuit, the villager group should participate in the lawsuit as the representative; as for the defense, the villagers meeting should not be the defense of the lawsuit for cancellation. The decision of villagers meeting infringing upon the lawful rights and interests of the collective members can be solved by administrative litigation. As for the time limit, the Property Law has not stipulated the execution time limit of the cancellation right of members. In view of the provisions of the cancellation right of shareholders as well as the considerable number of people involved in member cancellation right, it is suggested that the time limit “should be within sixty days since the day when the cancellation is informer or when the cancellation should be informer."The third part of the paper mainly discusses the misunderstanding in the application of cancellation right of rural collective members. It mainly includes the cause for cancellation, object of cancellation right, the types of judgment. As for the cause of cancellation, it is prescribed in law as "infringing upon the lawful rights and interests of the collective members". While the author thinks that the reason is not on the basis of the occurrence of actual damage, and should not bed divided into entity rights and procedure rights and interests, but its scope should be limited within the personal rights and interests of members without expanding to the rights and interests of the collective. As fort he object of cancellation, the law defines it as "decision". However, in the practice, this right is expanded to "contract", using the cancellation right to veto the contract effectiveness. Obviously, there is essential difference existing between "decision" and "contract". Thus, the cancellation decision should not be the basis of directly vetoing the contract effectiveness. In terms of the types of judgment, based on the analysis of four judgment types including off the docket, direct amendment of sentence, giving order of remaking decision, secondary sentence form, it can be found that only giving order of remaking decision is most beneficial to coordinate the relationship between judicial relief and villagers’ autonomy.The improvement of theory and its reasonable application aims at making the cancellation right of the rural collective members more effectively in safeguarding the legitimate rights and interests of the collective members.