论集体土地所有权与土地承包经营权之间的冲突与协调

Study on the Conflicts and Harmonization between Collective Ownership to Land and Contract Management Right to Rural Land

集体土地所有权与农村土地承包经营权并行存在于农村土地上的事实决定了两者之间必然会产生冲突与协调的问题。现实中,集体土地所有权与土地承包经营权之间的冲突普遍存在于农村土地的调整过程中、集体收回承包地的过程中以及农村土地承包经营权的流转过程中。严格限制集体调整承包地与收回承包地的权利,允许农民在自愿的基础上充分流转其承包地,建立集体土地所有权在土地承包经营权限制下实现的制度,可以达到协调两种权利的运行,构建和谐农村法秩序的目的。

The fact that collective ownership to land and contract management right to rural land coextend determines that they conflict and harmonize. In fact, the conflicts between the collective ownership to land and contract management right to rural land exist during the process adjusting rural land, the collective taking back the rural land and the circulating process of contract management right to rural land. The dissertation states that in order to solve the conflict between them, government must should severely restrict the right of collective group adjusting contract land and abolish the procedure of collective group＇s agreement during the process of transferring contract land＇s management right; at the same time, it must establish a conception that ownership right of collective land should be exerted under the restriction of management right on rural residence land and ownership right of residence land.