农村集体经济组织特别法人的特别效果

The Special Effects of Rural Collective Economic Organizations as Special Legal Persons

所有权具有观念性和现实性,并存在合二为一和相对分离两个层次,前者以归属为中心,也即个人主义的现代所有权;后者以利用为中心,分化为以功能为目的的归属所有权与以权能为中心的支配所有权。集体所有权系以利用为中心的所有权,但集体兼有归属所有权和支配所有权,承载了农民社会保障等政治功能,从而决定了农村集体经济组织的中间法人属性。结合农民集体的政治性、非法律主体性,农村集体经济组织系代表农民集体行使所有权。农村集体经济组织可管理所有集体财产,但不得破产或非依行政决定解散、合并。农村集体经济组织成员基于土地经营权、宅基地使用权的出资,不得与农村集体经济组织自己的财产混同。农民集体与农村集体经济组织的成员范围具有同一性。从成员的退出权和集体所有对成员平等的要求角度予以考虑,应设立集体股来动态调整成员权利。

Ownership has conceptuality and reality,and there are two forms that combined into one or relatively separated,with the former taking attribution as the center which we called modern ownership individualistic,and the latter taking utilization as the center,dividing it into attributable ownership with some kind of as the goal and dominant ownership with power as the center.The collective ownership is the ownership centered on utilization,but collective enjoys attributable ownership and dominant ownership,bearing the political functions such as farmers'social security,thus determining the intermediate legal person attribute of rural collective economic organizations.Combined with the political and non-legal subjectivity of the peasant collective,the rural collective economic organization exercises the ownership on behalf of the peasant collective.The rural collective economic organizations may manage all of the collective property,but they may not be dissolved or merged by bankruptcy or non-negotiable administrative decisions.The contributions made by members of rural collective economic organizations based on land management right and homestead use right must not be confused with the property of the rural collective economic organizations themselves.The Scope of membership of peasant collective and rural collective economic organizations is the same.In view of the requirements of members'right of withdrawal and collective ownership for their equality,collective share should be established to dynamically adjust the rights of members.