Practice forms and normative interpretation of the subject of collective land ownership

JIANG Hongli1 SONG Zongyu1

(1.Chongqing University Law School)

【Abstract】The confusion among farmers’ collectives, collective economic organizations and villagers’ committees in theoretical studies and practical explorations is due to the failure to recognize farmers’ collectives as the subject of collective land ownership. The confusion between farmers’ collectives and collective economic organizations results from a mismatch between native concept and the discourse of property rights, and serves as a practical choice to solve the problem of how to make farmers’ collectives exercise collective ownership independently. However, risks may exist in the above-mentioned confusion. Either the rural collective ownership of land would have been circulated, or it would violate the rules of the Company Law, which provides that legal persons undertake civil legal liabilities with all of their properties. In conclusion, the subject of collective land ownership is different from the representative subject of enforcement of collective ownership. Farmers’ collectives possessing the capacity as a subject of ownership should be the only subject of collective land ownership. Collective economic organizations cannot be deemed as the subject of collective land ownership. As a special legal person, it shall exercise the ownership on behalf of farmers’ collectives in the sense of independent management and accounting.

【Keywords】 special legal person; collective land ownership; farmers’ collective; rural collective economic organization; villagers’ committee;

【DOI】

【Funds】 Key Research Project of the Ministry of Education in Philosophy and Social Sciences (13JZD007) The phased results of Chongqing Graduate Research and Innovation Project (CYB16050).

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(Translated by LI Mengling)

    Footnote

    [1]. ① See the Central Office of the CPC Central Committee & the General Office of the State Council. People’s Daily (人民日报), (2016-10-31). [^Back]

    [2]. ② See the Central Committee of the Communist Party of China & the State Council. People’s Daily (人民日报), (2016-11-28). [^Back]

    [3]. ① Article 96 of the General Provisions of Civil Law stipulates that the legal persons of organ, rural collective economic organization, cooperative economic organization of urban and rural areas and community-level mass self-governing organization as stipulated in this section are special legal persons. [^Back]

    [4]. ② This paper refers to villagers’ committee and village group as village self-governing organization. According to Articles 2 and 3 of the Organic Law of Villagers’ committee (revised in 2010), villagers’ committee is a basic mass self-governing organization and village group is an organization separately set up by villagers’ committee according to the living conditions of villagers, the collective land ownership relationship, etc. In addition, the 2014, 2015 and 2016 Central No. 1 Documents respectively mention the village self-government pilot taking village group as basic unit, expanding the village self-government pilot taking village group as basic unit, and developing the village self-government pilot taking village group or natural village as basic unit. [^Back]

    [5]. ③ In this paper, “three” refers to farmers’ collective, rural collective economic organizations and village self-governing organizations. [^Back]

    [6]. ④ See the provisions of Article 10 of the Constitution (Revised in 2004), and Article 59 and Article 60 of the Property Law (2007). For simplicity of writing, the farmland discussed in this paper is limited to collective-owned farmland, excluding state-owned farmland. [^Back]

    [7]. ⑤ Subject here refers to the relevant subject involved in collective land ownership, rather than the subject of collective land ownership. [^Back]

    [8]. ⑥ See the Central Committee of the Communist Party of China & the State Council. People’s Daily (人民日报), (2010-2-1). [^Back]

    [9]. ① In May 2011, the Ministry of Land and Resources, the Ministry of Finance, and the Ministry of Agriculture issued the Notice on Accelerating the Affirmation, Registration and Certification of Rural Collective Land (No. 60 Document Released by MLR), clearly requiring that the rural collective land ownership certificate be affirmed to every collective economic organization with ownership, and the collective land ownership certificate be issued to the collective economic organization by the end of 2012. [^Back]

    [10]. ② In November 2011, the Ministry of Land and Resources, the Office of the Central Rural Work Leading Group, the Ministry of Finance, and the Ministry of Agriculture issued the Several Opinions on the Affirmation, Registration and Certification of Rural Collective Land (No. 178 Document Released by MLR), clearly stating that in the obligee column of land register and in landowner column in land certificate, the subject of collective land ownership is filled in by the “Farmers’ Collective in ×× Township (town).” However, in the procedure of land affirmation of registration, it is applied by the representative of subject of farmers’ collective ownership. [^Back]

    [11]. ③ See the Central Committee of the Communist Party of China & the State Council. People’s Daily (人民日报), (2011-1-30). [^Back]

    [12]. ④ See the Central Committee of the Communist Party of China & the State Council. People’s Daily (人民日报), (2012-2-2). [^Back]

    [13]. ⑤ See the Central Committee of the Communist Party of China & the State Council. People’s Daily (人民日报), (2013-2-1). [^Back]

    [14]. ⑥ See the Central Committee of the Communist Party of China & the State Council. People’s Daily (人民日报), (2014-1-20). [^Back]

    [15]. ⑦ See the Central Committee of the Communist Party of China & the State Council. People’s Daily (人民日报), (2015-2-2). [^Back]

    [16]. ⑧ See the Central Committee of the Communist Party of China & the State Council. People’s Daily (人民日报), (2016-1-28). [^Back]

    [17]. ① See the Central Committee of the Communist Party of China & the State Council. People’s Daily (人民日报), (2017-2-6). [^Back]

    [18]. ② See Gao, W. Economic Information Daily (经济参考报), (2013-7-25). [^Back]

    [19]. ③ See Guangdong Province, Implementation Plan for Accelerating the Affirmation, Registration and Certification of Rural Collective Land (2011), http://www.tuyinet.com/tdzc/11795.jhtml. [^Back]

    [20]. ④ Data source: Inspection and Acceptance of Results of the Affirmation, Registration and Certification of Rural Collective Land Fully Completed by Guangdong Province, http://www.gdlr.gov.cn/newsAction.do?method=viewNews&newsId=020010040000160535. [^Back]

    [21]. ① See Notice from Ministry of Finance and the Ministry of Agriculture and Ministry of Finance on the Affirmation, Registration and Certification of Rural Collective Land Forwarded by the Qinghai Provincial Department of Land and Resources, Qinghai Provincial Department of Qinghai Provincial Department of Agriculture and Animal Husbandry Promulgated on June 13, 2011. [^Back]

    [22]. ② See Sun, J. & Ye, S. Ningbo Daily (宁波日报), (2013-6-19). [^Back]

    [23]. ③ See Affirmation and Registration of Rural Collective Land completed by Le’an County, http://www.jxgtt.gov.cn/News.shtml? p5 = 39466394. [^Back]

    [24]. ④ See Adjustment and Supplement Announcement of Affirmation and Registration Results of Farmers’ Collective Land Ownership in Songbei District, Harbin City, http://www.hrbgtj.gov.cn/lmtzgg/9149.jhtml. [^Back]

    [25]. ⑥ See Review Results Announcement of Affirmation and Registration of Collective Land Ownership Issued by Ministry of Land and Resources of Qitaihe City, http://221.212.115.13:44009/zwgk/ggtg/201206/t20120629_20908.htm. [^Back]

    [26]. ⑦ See the Standing Committee of the Zhejiang Provincial People’s Congress. Zhejiang Daily (浙江日报), (2017-11-21). [^Back]

    [27]. ⑧ See the Standing Committee of the Zhejiang Provincial People’s Congress. Zhejiang Daily (浙江日报), (2016-1-18). [^Back]

    [28]. ① See the Central Committee of the Communist Party of China, Several Issues in Current Rural Economic Policy (1983), http://www.china.com.cn/aboutchina/data/zgncggkf30n/2008-04/09/content_14684996.htm. [^Back]

    [29]. ② See Article 74 of the General Principles of Civil Law (1986). [^Back]

    [30]. ③ See Article 8 of the Land Administration Law (1986). [^Back]

    [31]. ④ See Article 8 of the Land Administration Law (Revised in 1998). [^Back]

    [32]. ⑤ Article 2 of the Law on Farmland Contract (2002) stipulates that the farmland referred to in this Law refers to the farmland, forest land, grassland, and other land legally used for agriculture that are owned by farmers’ collective and owned by state but used by farmers’ collective according to law. [^Back]

    [33]. ① See Article 59 of the Property Law (2007). [^Back]

    [34]. ① See People’s Government of Dujiangyan City, Sichuan Province, Management Measures of Rural Collective Economic Organization in Dujiangyan City, ( 2008). http://www.caein.com/index.php/Index/Showcontent/index/bh/034/id/102154. [^Back]

    [35]. ① The use right of collective construction land, the contract and management rights of “four wasteland” and other use rights can be transferred for operation, and such assets can be included in the category of collective operating assets. [^Back]

    [36]. ② See Article 24 of the Organic Law of Villagers’ Committees. [^Back]

    [37]. ③ See People’s Daily Overseas Edition (人民日报海外版), (2017-1-4). [^Back]

    [38]. ① See the provisions of Articles 8 and 17 of the Constitution, Articles 2 and 20 of the Agricultural Law. [^Back]

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This Article

ISSN:1006-4583

CN: 11-3586/F

Vol , No. 06, Pages 2-13

November 2017

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Article Outline

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Abstract

  • 1 Statement of the problem
  • 2 Policy analysis of the subject of collective land ownership
  • 3 Practical exploration of the subject of collective land ownership
  • 4 Reasons for confusion between subjects of rural collective economic organizations and farmers’ collective
  • 5 Re-recognition of the subject of collective land ownership
  • 6 Conclusions
  • Footnote

    References