CAJ | 학술논문

中国农民成员权是指由中国法律制度确认的,有农民身份者在村社集体关系中享有主体地位和利益份额的法律资格。中国农民成员权是特定范围农民的群体性权利,可使集体权益回归农民,维护村社组织本旨,实现土地保障功能。在私法中,以成员资格为基础安排主体制度,以集体利益为基础安排客体制度,通过成员权衍生权利体系展现权利内容。同时,按照法定程式行使成员权,并依据多种意志共治实现成员权变动。
중국농민성원권시지유중국법률제도학인적,유농민신빈자재촌사집체관계중향유주체지위화이익빈액적법률자격。중국농민성원권시특정범위농민적군체성권리,가사집체권익회귀농민,유호촌사조직본지,실현토지보장공능。재사법중,이성원자격위기출안배주체제도,이집체이익위기출안배객체제도,통과성원권연생권리체계전현권리내용。동시,안조법정정식행사성원권,병의거다충의지공치실현성원권변동。
Membership right of China＇s farmers means the legal qualification, with which the farmers can enjoy the legal status in the village collective as well as the interests, as is confirmed by the China＇s legal system. It is a private right as is enjoyed by the farmers based on the membership in the farmer collective, which includes village community membership right, economic collective membership right and autonomous community membership right. It is the right based on the collective law instead of personal law. Furthermore, it is based on the special membership, which cannot be sold or inherited, but can be transferred with the membership change. Law transcends the natural and social differences and gives each farmer the same membership qualification and membership right, by which farmers can equally share the village collective interests as they subsist in the village organization and farmers collective. Membership qualification serves as the boundary between the insiders and outsiders of the collective. The collective has the responsibility of providing interests and service to the members while the members have the obligation of abiding by the village community administration and management rules. The members in the collective have rights and obligations towards each other in the legal and beneficial sense based on their common property. In terms of village community relationship, the farmer membership right, with the farmers in the collective as the subject and relevant benefits of the collective as the object, demonstrates general rights and benefits with the private interests as the core, which has the following functions., confirmation of legal status of the farmers as the main body in the collective; putting the farmers＇ collective interests back to the farmers themselves; upholding the principles of the village community organization; fulfilling the safeguard function of the land. The basic structure of the farmer membership right is a system of rights as governed by the membership qualification. The membership right, as is summarized based on the concrete rights, includes various concrete substantial or procedural rights. A member has the following rights towards the farmers collective： collective property share right, public facility utilization right, land contractual management right, homestead allotment right, surplus allotment right, collective benefit obtainment right, information-sharing right, democratic administration right, voting right, application cancellation right, additional convention right and litigation right. A member has the following rights towards the village committee： voting right, superintendence right, questioning right, and recall right. A member has the following rights towards other members： equal status right, cooperation requirement right, and superintendence right. A member has the following rights towards outsiders： elimination right, collective share, priority of contracting “four kinds of wasteland” and land contractual management right. The free will of member can only be practiced in the space of specific system. With regards to the basic rights of the farmers such as the membership qualification, it can be stipulated by the law with no room for the village community administrative rules and personal will to play their roles. With regards to the collective interests of the village community and common interests of the farmer membership change, it shall be governed by the village community administrative rules. With regards to the self-interests of the membership change, it shall be determined by the free will of the relevant. The original requirement for the obtainment of the membership is the input of factors of production such as land during the cooperation period. Afterwards, the membership qualification shall be confirmed in the forms of share-obtainment, household register, birth, marriage, migration, government arrangement, village convention resolution, and etc. The deprivation of membership shall be legally stipulated and village convention shall be empowered to announce the deprivation of membership according to the legal conditions and procedure. The legal conditions for the change of membership right shall include both the legal behaviors based on the private law such as adoption and marriage and the legal behaviors based on the public law such as the merger of villages and migration arrangement.