农户主体地位的法政策学辨思

On law and policy of the subject status of peasant household of the right to land contractual management

现行法律中出现的"个人承包""公民的承包经营权"等类似表述,是特定政策与规范背景的产物,不足以证成个人是家庭承包的土地承包经营权的主体。农户作为土地承包经营权的主体,有着持久的政策依据。其弹性化的独特属性,是其与自然人之间的本质差异。农户由家庭成员组成,但又独立于其成员。农民的承包资格系一种特殊的权利能力,具有"人人有份"的平等属性,亦不得转让、放弃、继承和被限制或剥夺,从而区别于以农户为主体的土地承包经营权。

Such expressions in the current law as ＂individual contract,＂ ＂the right to contracted managements of citizens＂ and the like are the product of specific policies and regulations, not enough to justify that the individual is the subject of the fight to land contractual management of the household contract. Peasant household, as the subject of the right to land contracted managements, has a persistent policy basis and deep social practice base and has also been recognized by the current law. The peasant household＇s contracting qualification is a special capacity for fights, with the equal quality that ＂everybody has one＂. This qualification shall not be restricted, deprived, transferred, given up or inherited, which is different from the fight to land contractual management with peasant household as the subject.