二轮延包中土地承包经营权主体资格的认定——以“整户消亡”为视角

The Qualification Affirmation of Management Subjects of the Second-round Extended Rural Land Contracting——From the Perspective of“the Whole Household Disappearance”

随着社会的发展和城镇化进程的推进,“整户消亡”、全家进城落户等情况日益普遍。《中共中央国务院关于保持土地承包关系稳定并长久不变的意见》明确提出:“因家庭成员全部死亡而导致承包方消亡的,发包方应当依法收回承包地。”(以下简称:“整户消亡”)由于历史和政策等原因,二轮承包中有些农民因税费、“农转非”、招干等原因导致该“户”没有承包地,有些因家庭成员全部死亡而导致承包方消亡但其“户”仍有承包地。在整体顺延的基础上,二轮延包重点在于“个别调整”的地和人,即在二轮延包中只有被认定为享有土地承包经营权的主体才有资格承包土地,其关键点和矛盾点在于“收回谁的地”“发包给谁”。现从法律、政策以及实践的角度对此问题进行研究分析,认为“户”不应当仅指“户籍”,应当结合当地实际情况等因素进行界定。

With the social development and the promotion of urbanization,prevail the situations such as“the whole household disappearance”,the whole family settling down in cities,etc.The guideline for keeping rural land contracting stable and unchanged on a long-term basis issued by the Central Committee of the Communist Party of China(CPC)and the State Council has clearly stipulated that“if the contractor disappeared due to the death of all family members,the contract-issuing party should legally reclaim the contractual land”(Shortened as“the whole household disappearance”).Due to history and policy reasons,in the second-round contracting some households do not have contractual land due to issues concerning tax and fees,a rural household transferring into urban one,being admitted as officials,etc.;and some households still keep contractual land even if all family members died and the contracting party disappeared.On the basis of general extension,the key of the second-round extended contracting lies in the land and people“in need of individual adjustment”,that is,only the one whose land contracting management rights have been affirmed can have the qualification to contract land,and the key and contradiction lie in“whose land to be reclaimed”and“who to be issued a contract to”.From the perspectives of law,policies and practice,the article conducts the research and analysis,and holds that“the household”does not only refer to“the household register”,and should be affirmed by taking the actual local situations into consideration.