我国农村集体土地所有权的立法构造——兼评我国《物权法》(草案)的相关规定

Legislative Construction of China's Rural Collective Land Ownership: Also on the Draft of Chinese Property Law

农村集体土地所有权是集体所有权立法的重点和难点。物权法草案在规定集体所有权时,继续使用了集体所有一词,这使得集体所有权主体模糊的弊端依旧。构造集体土地所有权,不仅要符合法律规则,还须考虑农村土地的功能、社会的意识传统以及制度的变革成本。鉴于农民集体在实践中的需要,可将农民集体构造成一种特殊的法人。法人成员身份以农村户籍为标志,成员按照法人的意思表示规则平等地行使成员权。物权法无须对集体所有权客体进行列举,只需对集体财产权利的变动做出规定。最后,要建立农村集体法人的治理结构,农民集体成员通过法人机关行使集体土地所有权。

Rural collective land ownership is the focal and difficult point in the collective ownership legislation. The word of ＂collective owner＂ is still used in the draft of the property law. So the drawbacks of collective ownership still exist because the main body is obscure. When we formulate the collective ownership, we should not only conform to the law but also consider the function of the rural land, the socio-ideological tradition and the cost of the system reform. Due to regarding farmers as a collective in the practice, we can regulate them as a specific legal person. The legal member identity is based on the rural household registration and the legal person performs its membership right on the principle of fairness. The property law does not need to list the objects of collective ownership, but should lay down rules for the ownership transfer of the collective property. The last point is the establishment of the administrative institution of the rural collective legal person, and the members perform the collective land ownership through the legal person organization.