集合共有:一种新的共有形式——以集体土地所有权为研究对象

Collective Co-ownership: A New Form of Co-ownership——A Research on the Nature of Collective Ownership of Land in Rural China

集体土地所有权的准确定性是改革和完善集体土地所有权制度的切入点。既有的定性都不具有法理和实践上的可行性。只有大胆借鉴英美法系的联合所有制度,重构大陆法系的共有形式,才能对集体土地所有权予以准确定性。新的共有形式———集合共有,与集体土地所有权性质具有内在的一致性。以集合共有规则来解释和处理集体土地所有权,既符合学理和逻辑的要求,更贴近中国的实际。

Defining exactly the collective ownership of land is the cut-in point to reform and perfect the system. None of the existing definitions is viable in jurisprudence and practice. The exact definition can only be got through using for reference the joint ownership in Common Law System and reconstructing the form of co-ownership in Civil Law System. Collective co-ownership, a new form of co-ownership, has inherent consistency with collective ownership of land. Explaining and managing collective ownership in terms of the principles of collective co-ownership can not only meet the doctrinal and logical demand but also be more feasible in China.