“三权分置”中的承包权边界与立法表达

The Boundary and Legislative Expression of Rural Land's Contract Right in “Three-Right Separation”

农户承包权在政策文本中的确立并未完全廓清对其本质属性和权利边界的疑惑。现实中农户承包权与集体成员权的关系常被误读,但事实上二者实质不同,应该及时纠正将农户承包权定性为集体成员权的立法动向。"三权分置"反映的是承包地由农户流转给其他人经营时所形成的客观形态。从动态视角全面审视土地承包经营权和承包权的关系,有助于清晰地界定土地承包经营权和农户承包权的关系。农户承包权的立法表达需要做好稳定和保护农户承包权的制度规范设计。应该继续沿用土地承包经营权的概念,明晰集体成员权与土地承包经营权的关系,赋予土地承包经营权更充分的权能。

The establishment of The Contract Right of Rural Land in the policy text does not clarify the doubts about its essential attribute and the right boundary. The relationship between The Contract Right of Rural Land and collective members＇ rights is often misread. But in fact, the two are essentially different. It is necessary to correct the erroneous legislative trend of taking The Contract Right of Rural Land as the collective membership right. ＂ThreeRight Separation＂ of Rural land reflects the objective form formed by the transfer of the contracted land by the farmers to other people. It is helpful to clearly define the relationship between The Land Contract Management Right and The Contract Right of Rural Land by examining the relationship between the two right from a dynamic perspective. The legislative expression of The Contract Right of Rural Land needs to do a good job of system standard design to stabilize and protect the farmers＇ contracting right. We should continue to follow the concept of land contractual management right, clarify the relationship between The Contract Right of Rural Land, Collective Membership Right and The Land Contract Management Right, and give The Land Contract Management Right more sufficient power.