权益主体视角下农户家庭成员土地承包权益研究

Study on Land Contracting Rights of Family Members of Rural Households from the Perspective of the Subject of Rights

在家庭承包中,农户是农村土地承包的承包方,是承包合同的当事人,但不是土地承包经营权的权利主体,土地承包经营权的权利主体是作为自然人的农户家庭成员。我国现行法虽不认可同居的婚姻关系形成力,但并未否认同居的家庭关系形成力,农户家庭的外延应扩及于同居农户家庭。家庭成员的认定与是否具有亲属关系无必然联系,其认定原则上应以"共同生活"为标准,但在例外情形下"共同生活"也未必就能形成家庭成员关系。农户内家庭成员是指具有集体成员资格并实际取得土地承包经营权的家庭成员。农户外家庭成员是指不具有集体成员资格未取得土地承包经营权或者虽具有集体成员资格但未实际取得土地承包经营权的家庭成员。户内家庭成员主要享有自耕权、处分权、流转权和补偿权四类土地承包权益,各成员对各类土地承包权益享有的是共同共有权。户外家庭成员对土地承包经营权的继承为特定继承,只有具有集体成员资格并同时具有家庭成员身份的继承人才有权继承。征收补偿款具有可继承性,其继承对继承人的身份无特殊限制。林地、四荒地的"继续承包"在性质上是对土地承包经营权(土地经营权)的继承。

In family contracting,rural households are the contractors of rural land contracting relations and the parties to the contract,but they are not the subject of the right to the land contracting and management rights. The subject of the right to the land contracting and management rights is the family members of rural households as natural persons. Although China ’s current law does not recognize the forming force of marriage relationship in cohabitation,it does not deny the forming force of family relationship in cohabitation. The extension of rural households should be extended to the cohabiting rural households. The identification of family members is not necessarily related to whether they have relatives or not. In principle,they should take "living together"as the criterion,but in exceptional circumstances,"living together"may not necessarily form family members. Family members in rural households refer to family members who have collective membership and actually acquire the right of contractual management of land. Family members outside the rural household refer to family members who do not have collective membership and have not acquired the right to contractual management of land or who have collective membership but have not actually acquired the right to contractual management of land. Family members in households are mainly entitled to land contracting rights of self-cultivation, disposal, transfer and compensation,and all members are entitled to joint ownership of all kinds of land contracting rights. The inheritance of land contractual management rights by outdoor family members shall be a specific inheritance,and only those who have the status of collective members and family members shall have the right to inherit. The levy compensation is inheritable,and there are no special restrictions on the status of the heirs. In nature,the "continuous contracting"of woodland and four wasteland is the inheritance of the contracted land management right( land management right).