农村土地承包经营权设立研究——基于集体土地成员权的视角分析

A Study on Establishment of Right to Contracted Management of Land

集体土地成员权是农村土地承包经营权设立所应当依据的基础权利。然而,由于制度惯性和路径依赖,成员权一度被忽视。依成员权,成员个人对集体土地应享有一项均等的"按份使用权"。签订土地承包经营合同仅是请求分割"按份使用权"的意思表示方式,并非设立土地承包经营权的前置条件。据此,引起土地承包经营权设立的法律事实,除了法律行为外,还应包括事实行为,如此才能最大限度地保障土地承包经营权设立的有效性。

The Membership Right of Collective Land is the basic fight which should be relied on by the establishment of Right to the Contracted Management of Land. However, the membership fight is being neglected because of systemic inertia and path dependence. According to Membership Right, the individual members should be entitled to equal ＂several co-using right＂ which is similar to the Quasi-Community Property in nature. Signing a land Contract is not the necessary pre-conditions of establishment of Right to the Contracted Management of Land, but only to express the request of dividing the ＂several co-using fight＂. Thus, in order to maximize the farmers＇ interests on the land, the legal facts that result in the establishment of Right to the Contracted Management of Land should include not only legal action but also factual action.