拾遗与补缺:论《农民专业合作社法》的完善

Supplement and Optimization of "The Law of the People's Republic of China on Specialized Farmers Cooperatives"

农民专业合作社法在发挥其确认和规范功能的同时,也暴露出不足之处。在成员方面,合作社法对成员资格的规定语焉不详,对成员权利与义务规定得不合理。在合作社组织方面,对合作社的登记与变更、成员退社及再入社、监督机构设置、破产能力和合作社联合社的规定存在诸多问题。在合作社运营方面,对合作社无正当理由长时间不开业没有规定,盈余分配中公积金提取量不明,没有规定公益金提取,且盈余分配不能体现激励机制。合作社法在个别条文和字句上也有瑕疵,立法体例不尽完美。

The Law of the People＇s Republic of China on Specialized Farmers Cooperatives plays an important role of defining and standardizing specialized farmers＇ cooperatives, but it also contains some deficiencies. The law has no definite regulation on the membership qualifications and no reasonable definition on the members＇ fights and duties; there exist many problems in the registration and alteration of cooperatives, members＇ withdrawal from cooperatives and re-enterin~ the establishment of supervisory organization, the bankruptcy ability of cooperatives and the regulation on the cooperatives union; there are no regulations on the cooperatives＇ long-term suspense of business without just cause and no definite regulations on the drawing amount of the common reserve funds or the drawing of common welfare funds and furthermore, the distribution of profits can not reflect the stimulation mechanism; there also exist some defects in some items and terms of the law, thus its legislative style is not so perfect.