农地“三权”分置的路径选择

Path Selection of Tripartite Rural Land Entitlement System of Farmland Property Rights

研究目的:在"三权分置"背景下探索农地的集体所有权、承包权和经营权的合理分置路径。研究方法:文献分析法、比较法。研究结果:(1)官方主流观点认为,"三权分置"就是坚持集体所有权不变,将原承包经营权拆分为承包权和经营权。(2)法学界质疑这种分离逻辑,认为承包经营权并不包含承包权和经营权,"三权分置"就是坚持集体所有权不变,在原土地承包经营权之上创设另一个经营权。(3)这两种"三权"分置路径均排除了集体所有权的参与,也未意识到"三权分置"改革对集体所有权缺陷的修补作用。研究结论:经比较发现,更合理的农地"三权"的分置路径应当是,在具有"总有"性质的集体所有权之上创设出具有成员权性质的农户承包权,籍此将集体所有权改造为可在实践中经由个人支配的产权形态;将原承包经营权更名为经营权,使之成为去身份化后的用益物权。

The purpose of this paper is to explore the best way to divide the ownership, the contractual right and the management right of farmland in China under the condition of the ＂Tripartite Rural Land Entitlement System（TRLES）＂. The methods of documentary research and comparative study are employed. The results indicate that 1）the dominant official viewpoints deem that given the unchanged collective land ownership, the original contractual management right would be divided into the contractual right and the management right. 2）The jurists usually disagreeing with the official opinion state that the contractual management right doesn’t contain the contractual right and the management right and given the unchanged collective land ownership, a new management right should be created regardless of the contractual management right. 3）There are common defects in the two aforementioned TRLES, namely, both opinions exclude the ownership from the TRLES and ignore the improvement effect of TRLES on the collective ownership’s shortcomings. The conclusions are as follows： after the comparison, the best path of TRLES should be that 1）the new contractual right which is a membership should be created based on the co-ownership of farmland, by means of which the co-ownership will become a kind of individual disposal right. 2）The original contractual management right should be named as themanagement right, making it a kind of legal usufruct.