稳定土地承包关系视域下土地承包经营权继承的法理阐释与规范路径

Jurisprudential Interpretation and Normative Path of Inheritance of the Right to the Contracted Management of Rural Land from the Perspective of Stabilizing Land Contracting Relationship

土地承包经营权的身份性特征使得其继承与否无论在理论上、立法上还是实践上均未达成共识。土地三权分置改革在立法上的落实,使得土地承包经营权继承与否的问题转变成了土地承包权继承、土地经营权继承还是土地承包经营权继承的新分歧。土地承包经营权继承与否、如何继承,应当从法理基础、规范进路综合分析,平衡政策与法律之间的张力。土地承包经营权与土地承包权在法律属性上的同一性,决定了土地承包经营权继承等同于土地承包权继承。在继承规则构造上,坚持集体成员为权利主体,兼顾土地承包经营权的身份性,限定其继承主体为本集体成员。在继承方式上以法定继承为主,赋予尚未取得土地承包经营权的户内集体成员以优先性,遗产分割区分"分户"与"未分户"的情形,并予以变更登记。

Due to the status of the right to the contracted management of rural land, the inheritance of the right cannot reach a consensus in theory, legislation and practice. The legislative implementation of the reform of the separation of land rights and management rights has turned the problem of inheritance of the right to the contracted management of land into a new one: Is it inheritance of the right to the contracted of land, the right to the management of land or the right to the contracted management of land? Whether and how the right to the contracted management of land can be inherited needs to be analyzed from the perspective of legal basis and norms to balance the relationship between policy and law. The identity of the right to the contracted management of land and the right to the contracted land in legal attribute determines that inheritance of the right to the contracted management of land is same to inheritance the right of contracted land. In the construction of inheritance rules, we insist that the collective members are the subject of rights, take into account the status of the right to the contracted land and limit their inheritance subjects to the members of the collective. In terms of inheritance mode, legal inheritance is the main method, giving priority to the indoor collective members who have not yet acquired the right to the contracted management of land, and dividing the estate into "sub-households" and "non-sub-households", and registering the changes.