乡村社区参与景区利益分配的法理逻辑及实现路径——基于现行法律制度框架视角

The Legal Theoretical Logic and Way to Tourist Attraction Profit Allocation for Rural Communities: The Perspective of Current Legal System

围绕中国乡村旅游开发收益分配不合理引发的景区冲突,目前旅游学界和法学界就其问题产生的症结与破解之法,大体形成了"赋权派"与"合同派"两大争鸣格局。文章基于现行法律制度框架,阐述了旅游吸引物价值实现的债权而非股权、农村集体土地的二元法权等法理逻辑。主张地方政府通过"地役权合同"管理规制,将社区旅游"吸引物补偿"作为景区开发商取得地役权的约定条件,并以"法定孽息"的名义、"门票分成"的形式写入合同,再以细则来明确规范景(区)社(区)双方的责权利,使其行为解释有法可依;通过建立农地入股下的股份制现代旅游企业制度和旅游景区会计核算制度,并在第三方力量的协助下,最大限度地保障乡村社区资产性要素参与旅游景区利益分配的权益。

This study focuses on conflicts that occur in scenic areas of rural China and that is caused by unreasonable profit distribution associated with tourism resource development. At present, this issue is being debated in the field of tourism and law without any agreement having been reached, while two factions have formed instead： ＂Empowerment＂ and ＂Contract＂. Based on the current legal framework, this paper elaborates the legal logic about tourist attractions and the worth of exercising creditor rights, and the dual structure of legal rights of rural collective land （e.g., debt and equity）. Examples of such value implementation include possible categories for easement applications （such as easements for tourism attractions）, and management regulation of ＂easement contracts＂ by local government to seek a means of compensation （other than expropriation or rental） for being indirectly used as tourist attractions. This paper then analyzes and discusses compensation standards and influential factors, forms of compensation and the spatial and temporal boundaries thereof. Countries have recently introduced tourism-related land policies, and compensation standards for land requisition or rental. On this basis, this paper proposes a mechanism to protect community participation in the distribution of tourism benefits associated with scenic regions, including the establishment of a mechanism to protect compensation for tourism attraction easement. The system also protects farmland in the joint-stock system of modem tourism enterprises. This paper also proposes an accounting system to track financial information associated with tourism areas, as well as a sound mechanism for settling contract disputes. We suggest that effective regulations should be made by local governments, with a supervisory third party to ensure the rights of rural communities in the distribution of benefits associated with scenic areas. Taking minimum will ingness to accept as a benchmark in setting compensation for community residents, the two parties （i.e., tourism operators of attractions and the community） reached a compensation standard for compensating the community with regard to the operation of a tourism attraction easement. This dynamic numerical interval conforms to Pareto improvement, and the compensation standard increases from the lower limit （the burden of attraction easement） to the upper limit （a profit split arrangement）. The proportion of ticket revenue allocated to compensation varies according to specific factors such as the burden of the attraction easement and the appreciation of the community in different scenic areas. According to the industry practice in China, 20 percent of ticket revenue has become almost a convergence value in the game both sides play to seek an equilibrium. The conclusion of this study applies mainly to scenic areas in living communities that tourists purchase tickets to access. The process of drawing up the easement contract is important for cultivating the participation, awareness, and ability of community inhabitants. A new context for Chinese community participation in tourism has been established by the establishment of mechanisms to protect collective rural landholdings, such as the sale of shares in land and compensation for tourism attraction easements. The community is the core shareholder, and plays a dual role as creditor and shareholder in both the tourism project and scenic region. This reestablishes community participation and is consistent with academic research conducted in the West on tourism superstructure.