《民法典》:集体林权制度建设的典范性准则

Civil Code:Canonical Criteria for Construction of Collective Forest Tenure System

结合集体林权改革实践,运用物权与债权理论对《中华人民共和国民法典》涉及集体林权制度的法律规定进行分析。结果表明:集体林地所有权包括决策权、承包权、代理权三个权利束,分别属于农民集体、农户、具有法人资格的农村集体经济组织,以家庭承包方式取得的林地承包经营权拥有完备的权利体系和对世性的排他权。在集体林权流转实践中,合同的效力以及流转双方权利救济等问题在《民法典》均可以找到法律方案。

(1)Background--China's collective forest tenure reform has experienced a process of interactive evolution of policies and laws,which promotes the development of collective forestry but leaves several institutional conflicts.The Civil Code will be put into trial implementation on January 1,2021,indicating that the General Civil Law,the Property Law and other laws accompanied by the collective forest tenure reforms will be abolished,and the Civil Code will become the canonical criterion for the policy making,legislation and government behavior of collective forest tenure reform.⑵Methods--Combined with the practice of collective forest tenure reform,the legal provisions concerning collective forest tenure system in Civil Code are analyzed by using the theory of property right and creditor right.First of all,with systematic interpretation method,the relevant provisions in Civil Code about collective forestland ownership,forestland contracted management right and forestland management right are analyzed from the perspective of property right structure theory.⑶Results--The result shows that collective forestland ownership is divided into a bundle of decisionmaking,contract right and agency right,which are allocated to peasant collective,peasant household and rural collective economic organization respectively.The special legal person qualification of rural collective economic organization and the legal agent status of peasant collective are conducive to protecting peasants'legitimate rights and interests to a certain extent.The forestland contracted management right obtained by household contract has complete right system and exclusiveness.The forestland management right acquired by lease belongs to the nature of creditor right,and the stipulation that forestland management right with more than five years'transfer period can be applied for property right protection is not suitable for forestland management.Secondly,the provisions of standard terms and lease contracts in the Civil Code are applied in detail to analyze the difficulties in the validity of contract and the right relief of both parties which occurred in the practice of collective forest rights transfer.Accordingly,forestry policies and regulations in line with the spirit of the Civil Code should be formulated to meet the needs of the practice of forest tenure reform.⑷Prospections--Through the analysis,the vitality,sustainability and foresight of the collective forest tenure reform implemented nationwide since 2008 is affirmed at the end of the paper.It is hoped that the promulgation and implementation of the Civil Code can further regulate the collective forest tenure reform in the future,and provide basic and exemplary basis to improve and stabilize the collective forest tenure system including laws and policies.