动态系统论下农村集体经济组织成员身份取得的立法范式转型

The Legislative Paradigm Transformation of Membership Acquisition of Rural Collective Economic Organizations under the Dynamic System Theory

集体经济组织成员身份取得认定的试点实践复杂多样,须通过立法范式转型破解法律刚性与实践弹性冲突的难题。对此,应引入动态系统论,采取“因素—效果”立法模式取代“要件—效果”立法模式,即列举出影响成员身份确认的因素,并按照重要性进行排序。在立法时应首先厘清成员身份背后的一般原理,即财产权逻辑、社会保障逻辑、团体自治逻辑,然后根据这三个逻辑将成员身份取得分为初始取得、法定取得和申请取得三种类型。初始取得以财产与劳动投入作为身份取得的依据。对于法定取得的标准,可将是否以集体土地作为基本生存保障列为首要因素,将血缘关系、地缘关系、婚姻关系作为次之因素,将户籍列为后顺位因素。申请取得遵循团体自治逻辑,标准亦应由团体决议确定。

The pilot practice of membership identification of collective economic organizations is complex and diverse, and the conflict between the rigidity of law and the flexibility of practice must be solved through the transformation of legislative paradigm.In this regard, there is a need to introduce the dynamic system theory and adopt the legislative model of "factor-effect" to replace the "element-effect" structure, that is, to list the factors affecting the confirmation of membership and rank them according to their importance. The general principles behind membership need to be found in legislation, namely, a property rights logic, a social security logic and a group autonomy logic. According to these three logics, legislation should distinguish the acquisition of membership into three types: initial acquisition, legal acquisition, and application acquisition. Initial acquisition is based on property and labor input. For the standard of legal acquisition, whether collective land is used as the basic survival guarantee can be listed as the primary factor, followed by blood relationship, geographical relationship and marriage relationship. The registered residence is listed as a factor of post ranking. Application acquisition follows the logic of group autonomy, and the standard shall be determined by group resolution.