农民集体成员资格认定的规范路径——以地方立法、司法实践为视角

The Normative Approach to the Affirmation of Rural Collective Membership:From the Perspective of Local Legislation and Judicial Practice

农民集体成员资格是成员获得集体权益的基础。全国性统一立法缺失,农民集体成员资格认定的实践存在诸多问题:地方立法和司法规范的标准不统一,效力性受质疑;农民集体成员资格认定主体不明,救济机制缺失,成员权益难以保障。集体所有制是公有制经济的一种,兼具公法属性与私法属性,以土地为纽带的成员集体的运行应当兼顾其公共属性。所以,农民集体成员资格认定应当进行全国性统一立法,在规则构造上,明确农民集体成员资格认定的形式标准与实质标准,确立农民集体成员集体为资格认定主体,明确成员资格认定的可诉性范围。

Rural collective membership is the basis for the members to enjoy the collective rights and interests.Due to the absence of national uniform legislation,many problems exist in the affirming practice of collective membership.The standards of local legislation and judicial norms are not unified,and the validity is questioned.The identification subject of rural collective membership is not clear,the relief mechanism is missing,and the rights and interests of members are difficult to protect.Collective ownership,as a component of the public sector of the economy,features both the properties of public law and private law,and the operation of collective members that are bonded by the land should take into account its public properties.Therefore,the national uniform legislation should be carried out for the identification of rural collective membership.In terms of the structure of rule,it is suggested to clarify the formal and substantive standards of the identification of rural collective membership,estab⁃lish the rural collective members as the qualification subject on the whole,and delimitate the litigable scope for the affirmation of membership.