论农村集体成员身份和土地产权相对分离--以成员土地资格权的收回或转让及继承为视角

Study on the Relative Separation of Collective Membership and Land Property Rights:From the Perspective of Retraction or Transfer and Inheritance of Membership Property Rights

研究目的:从土地产权收回、转让和继承,探究集体成员身份与产权相对分离理论及制定面向未来的农村集体经济组织法。研究方法:规范分析法,实地调查法。研究结果:社会保障在城乡一体,集体成员身份保障功能在弱化,让农民工带财产进城需产权和身份分离,新型利益冲突需立法调控。研究结论:新型身份和产权关系应以农为本,逐步分离产权和身份绝对的绑定关系;土地经营权人可成为新社员和有偿使用宅基地;因入公职而离社,个人的由家庭共享,全家离社的承包地收回,宅基地保留与否视住房保障;宅基地资格权可为市民继承和转让,避免为占地新建闲置房;有农技的可优先继承股份和承包地;全家出国的,收回其土地产权;退休或恢复国籍回乡,可有偿使用宅基地。

The purposes of this study are to explore the theory of the relative separation of collective membership and land property rights,and to formulate the future-oriented rural collective economic organization law from the perspective of membership property right retraction,transfer and inheritance.The research methods include normative analysis and fieldwork.The results indicate that social security is in the integration of urban and rural areas,and the security function of rural collective membership is weakening.To enable migrant workers bring property into the urban areas,land property rights and identity are actually partially separated.The conflict between the two needs legislative regulation.In conclusion,the new identity and property rights relationship should be based on agriculture,and the absolute binding relationship between property rights and identity should be separated gradually.Land management right holders can become new members and use rural residential land with compensation.For those who become officials and leave the rural cooperative,the contracted land of the individuals is shared by the family.The contracted land of the whole family that leaves the rural cooperative is retracted the issue,whether the rural residential land is retained or not is guaranteed by the family housing.Qualification right of rural residential land can be inherited by urban resident.Those with agricultural technology may have priority in inheriting collective shares and contracted land.The whole family is disqualified from going abroad,whose residential land may be used for compensation after retirement or restoration of nationality.