行政审判视野下集体土地征收过程中分家行为研究——兼论法院参与地方政府核心公共政策制度变迁

Study on the Behavior of Family Division in Collective Land Expropriation Under Administrative Adjudication——Take the Court to Participate in the Local Government's Core Public Policy System Vicissitude as the Breakthrough Point

分家行为作为世代相传的民间习惯在集体土地征收过程中成为被征地农民,尤其是"外嫁女"^(1)博弈抬价的诉讼策略。撇开对征地冲突的刻板影响,全景式观察行政诉讼中各方利益诉求及行为逻辑,可以发现:被征地农民的诉求是凭借非正常分家行为增加征地补偿,地方政府的目的是利用行政规范性文件推进土地征收,法院的定位则是通过行政规范性文件附带审查机制实现制度变迁。通过探究我国二元土地法律制度,可知"外嫁女"分家分户结果难获认定存在深层制度根源,分家行为实质是户内成员对宅基地使用权的二次分配。我国现行法律限制宅基地使用权流转但也未完全禁止,宅基地使用权在户内成员间流转理应得到认可。法院通过标杆性案件的审判可以实现地方政府"一户一基"认定标准的突破,推进地方公共政策制度变迁。

As a folk custom handed down from generation to generation, the family division behavior has become a lawsuit strategy for the peasants who have been expropriated, especially those who have already been married. Apart from the rigid influence on the con- flict of land expropriation, we can find out the interests of all parties in the administrative litigation and the logic of behavior： The land- less peasants＇ demands is to increase the compensation for land requisition by abnormal family division behavior; the local government is to promote land expropriation by administrative normative documents; the court position is to achieve institutional changes through ad- ministrative normative documents with the review mechanism. By studying the legal system of two binary in our country, we can see that the ＂separation of married women＂ is difficult to be recognized, and there are deep institutional roots. The nature of family separation is the two distributions of using the house right by the members of the house. China＇ s current laws limit the transfer of residential land, but it has not been completely prohibited. The transfer of the right to use residential land in the interior should be recognized. Through the trial of benchmark cases, the court can achieve the breakthrough of the standard of ＂one household, one basis＂ standard of local govern- ments, and promote the change of local public policy system.