“消亡户”的认定及其承包地规范化处置研究

The Identification of“Extinct Households”and the Standardized Disposition of Their Contracted Land

集体经济组织以农户为单位开展土地发包工作,农户的持续存在是其享有土地承包权、分得承包地的前提,而农户消亡意味着其承包资格的丧失,并可能导致承包地被收回的法律后果。然而,在现实中,“消亡户”的认定缺乏法律政策依据,依据村规民约、传统习俗等方式认定“消亡户”的传统操作方式,使得“消亡户”的认定及其承包地的处置处于较为混乱的状态。因此,基于生命周期理论,“消亡户”的认定应遵循以人为本的准则,以第二轮土地发包时的原始人口及其衍生人口全部死亡为认定标准。同时,在有子女和配偶等直系亲属尚未死亡的状态下,应慎重认定“纯女户”、分户后的原生农户、五保户、进城农户等特殊类型农户为“消亡户”。最后,应区分一般情况和特殊情形,加强对“消亡户”承包地的规范化处置与管理,实现农村土地资源的合理优化配置。

Collective economic organizations carry out land-leasing work with households as units.The continuous existence of households is the prerequisite for them to enjoy land contracting rights and obtain contracted land.The extinction of households means the loss of their contracting qualifications and may lead to the legal consequences of contracted land being recovered.However,in reality,there is no legal policy basis for the identification of“extinct households”.The traditional way of identifying“extinct households”based on village rules and customs has left the identification of“extinct households”and the disposal of their contracted land in a relatively chaotic state.Therefore,based on the life cycle theory,the identification of“extinct households”should follow the people-oriented principle,with the death of all original and derived populations at the time of the second round of land leasing as the recognition standard.At the same time,in the situation where the children and spouses of directly-related families are not yet dead,careful identification should be made in regard to whether certain special types of households,such as“female-only households”,original households after dividing into smaller ones,“five-guarantee”households,and rural households that have moved to urban areas,should be identified as“extinct households”.Finally,differences between general circumstances and special situations should be distinguished,and standardization treatment and management of“extinct households”in respect to their contracted land should be strengthened so as to achieve reasonable and optimal allocation of rural land resources.