离婚妇女土地承包经营权分割的法律困境与出路

Legal Dilemma and Outlet for the Division of Land Contractual Management Rights of Divorced Women

农村妇女婚姻关系变动是其丧失土地承包经营权的重要原因。《婚姻法》和《农村土地承包法》在单独调整婚姻关系或是土地关系都不会出现离婚导致妇女失去土地的极端现象。但二者交叉调整时,这种现象却十分普遍。盖两部法律在对土地承包经营权的财产属性、财产范围、分割方式、救济程序上存有冲突或共同留白。农村妇女家庭成员权与集体经济组织成员权是两种独立的权利,其权利内容也完全不同。离婚会导致农村妇女丧失家庭成员权,却不会影响其集体经济组织成员权。因此在土地承包经营权属于家庭成员共有的情形下,离婚妇女申请分割土地承包经营权有正当性和合理性。法律应当进一步明晰土地承包经营权财产范围,选择契合用益物权特点的分割方式,不断畅通司法审查路径。

The change of rural women marital relationship is an important reason for their loss of land contractual management rights. When the Marriage Law and the Law of Land Contract in Rural Areas adjust the marital relationship or the land contract relationship separately, there is no such phenomenon that the divorced women would lose the land. However, once cross-adjustment happens, this phenomenon is very common. The two major legal systems have conflicts or joint reservations on the property attributes, property scope, division methods, and relief procedures of land contractual management rights. The rights of family members of rural women and the membership of collective economic organizations are two independent rights, which are completely different. Divorce can lead to the loss of family members' rights in rural women without affecting the membership of their collective organizations. Therefore, Therefore, in the case that the land contractual management right belongs to the family, the divorced woman has the legitimacy and rationality to apply for the division of land contract management rights. The law should further clarify the scope of land contractual management rights, choose the division method that suits the characteristics of usufructuary rights, and continuously unblock the judicial review path.