“三权分置”下集体土地所有权的功能转向与权能重构

On the Transformation of Function and Restructuring of Right Content of Collective Land Ownership in the Context of ‘Separation of Three Rights'

农村土地"三权分置"改革引致集体土地所有权的功能转向和权能重构。"三权分置"的权利结构是"集体土地所有权—土地承包经营权—土地经营权",是集体土地公平分配,土地承包经营关系长久不变,土地经营权自由流转的结合。在"三权分置"经营模式下,集体土地所有权的保障功能伴随固定时点的农地公平分配而实现,土地承包经营权在此时点之后长久不变趋向"自物权化",成员集体主要行使处分权能。应当按照集体土地所有权权能重构的理念要求,健全成员集体民主议事机制,明确承包关系长久不变的制度设计,解除集体对农户行使土地承包经营权的不当限制,强化集体自治组织的农地使用监督权。

The reform of the ‘separation of three rights' relating to agricultural land would lead to transformation of function and restructuring of the right content of collective land ownership. The structure of the‘separation of three rights' is a right framework in which collective landownership,the household right to the contracted management of land,and the right to management of land coexist with each other. The‘separation of three rights' policy combines the equal distribution of collective land,the stability permanently of the land contractual relationship and the free circulation of land managerial right together.In the context of the ‘Three- Right Separation',the safeguard function of collective land ownership is realized by equal distribution of agricultural land on a fixed time,and the household right to the contracted management of land becomes ‘jus in rem for the self'in nature after that time owing to its permanent stability. Consequently,the right content of collective land ownership remains to deal ultimately with the household right to contracted management of land. Accordingly,some measures should be taken to meet the ideas and needs of restructuring of the right content of collective land ownership: the democratic system for the farmers' collective to make decisions should be perfected; the permanent stability of the relationship of land contract is expected to be made clear in legislation; restrictions imposed by the farmers' collective on household right to contracted management of land should be released; the supervision power of collective self- governance organization over the rational use of the land shall be reinforced.