农村集体经济组织成员股权有偿退出的法律表达——写在《农村集体经济组织法》颁行前

Legal Expression of Paid Withdrawal of Equity by Members of Rural Collective Economic Organizations——Written before the Promulgation of the China Rural Collective Economic Organization Law

在本轮集体产权改革试点中,尽管各地均不同程度认可农村集体经济组织成员可有偿退出其股权,但在有偿退出条件、方式和程序等方面做法不一、差异明显,尚需进一步检讨和完善。法理上,农村集体经济组织成员股权有偿退出条件应分申请退出条件和强制退出条件,有偿退出方式和程序应分向本集体其他成员转让、由本集体赎回、向本集体以外的人转让三种。农村集体经济组织成员股权有偿退出条件、方式等法律制度的设计,应以区分成员股权不同属性为基点。如果是以集体土地所有权收益为折股量化对象而配置的成员股权,那么其强制退出的条件是成员身份的丧失,其退出方式仅限于集体内部进行,不能对外转让,如此方能体现这一股权的身份性、保障性、封闭性;如果是以集体经营性资产收益为折股量化对象而配置的成员股权,那么除非成员申请退出,原则上不适用强制退出,其有偿退出方式不仅限于集体内部进行,亦可在一定条件下对外转让,如此方能体现其市场性。

In this round of pilot reform of collective property rights,although various regions have recognized to varying degrees that members of rural collective economic organizations can withdraw their equity for a fee, there are different and obvious differences in terms of withdrawal conditions, methods and procedures,which need further review and improvement.Legally,the conditions for the paid withdrawal of equity of members of rural collective economic organizations should be divided into the conditions for application for withdrawal and the conditions for compulsory withdrawal. The methods and procedures for the paid withdrawal should be divided into three types:transfer to other members of the collective,redemption by the collective,and transfer to people outside the collective.The design of the conditions and methods for the paid withdrawal of the members’ equity of rural collective economic organizations should be based on the differentiation of the different attributes of the members’ equity.If the collective ownership income is used as the quantitative allocation of member equity,the conditions for its mandatory exit are based on the loss of membership. The exit method is limited to the internal collective and cannot be transferred to the outside,so as to reflect the identity and closeness of this equity;If the income from collective operating assets is used as the member’s equity of quantitative allocation of share conversion,then unless the member applies for withdrawal,mandatory withdrawal is not applicable in principle,and the paid withdrawal method is not limited to the internal collective, but also can be transferred externally under certain conditions, so as to reflect its marketability.