The binding force of the public power in villages: from the perspective of the system dilemma of one project one discussion
(2.School of Law, Zhongnan University of Economics and Law)
【Abstract】The one project one discussion system runs into a dilemma of collective action because of the existence of free riders. Although the policy of financial reward and subsidy has made considerable achievements, it cannot completely solve the problem. One of the keys to getting out of the predicament is that public power in the village could make credible promises and threats. However, judicial practice generally holds a negative attitude to the binding force of public power in the village and the effectiveness of the penalties imposed by village rules, and controversies also exist among academia. As the administrator of autonomous affairs and the provider of public services and goods, the village self-government incorporation exerts public power in the village. Public power derives from the transfer of villagers’ rights. Its enforcement should conform to village rules as it is based on the consent of villagers. Its binding force lies in that village rules, as the public will of villagers, prevail over the will of individual villagers. Recognizing the binding force of public power in the village does not mean acknowledging its compulsory execution right. To actualize the binding force, direct implementation or indirect enforcement could be adopted, but it should eventually be based on public power of the state.
【Keywords】 social public power; one project one discussion; free rider; binding force; village self-government incorporation ;
. ① Three deductions and the five charges refer to three deductions for public reserve funds, public welfare funds and management fees at the village level and the five charges for rural education, family planning, militia training, rural road construction and subsidies to entitled groups at the township level. Two forms of labor refer to farmers’ compulsory labor and accumulated labor for rural public welfare undertakings during the slack season. [^Back]
. ① The village self-government incorporation is a community made up of all members (villagers) of a village. This paper adopts this concept instead of that of the villagers’ autonomous organization in order to avoid mistaking the broad sense of the villagers’ autonomous organization and the narrow sense of the villagers’ autonomous organization. In the narrow sense, it refers to the village council. In the broad sense, it means the organizational structure that is made up of all organizations in the village and all villagers. Apart from the village council, it may include other autonomous organizations and institutes such as the villager meeting and villager groups (Li, 2000). The village self-government incorporation in this paper corresponds to the villagers’ autonomous organization in the broad sense. [^Back]
. ② Some scholars view and use the term villagers’ autonomous rights from the angle of power, while others do it from the angle of rights (Cui, 2001). [^Back]
. ① The official website of the Ministry of Finance http://www.mof.gov.cn/zhengwuxinxi/caizhengxinwen/201306/t20130605_906022.html. The research data of some scholars are higher than the data used in this paper (Luo, 2001). [^Back]
. ① See Clause 3, Article 2 of the Notice of the Ministry of Finance on Central Financial Reward and Subsidy for the One Project One Discussion System with Regard to Public Welfare Projects in the Village ( No. 5): for farmers’ construction of public welfare projects on the village level with the fund and labor collected by the one project one discussion system, it is suggested that the government could subsidy 1/3 of the fund. This act was abolished in 2012 and then the proportion of financial reward and subsidy was increased. [^Back]
. ② For instance, in Zhejiang Province in 2017, the ratio of the financial reward and subsidy for the one project one discussion projects to the fund collected by the village community was 70:30, and for the village communities whose economy was weaker, the ratio was 75:25. See http://www.dinghai.gov.cn/art/2017/1/12/art_12_390166.html. [^Back]
. ① As stated before, the Notice of the Ministry of Finance on Central Financial Reward and Subsidy for the One Project One Discussion System with Regard to Public Welfare Projects in the Village ( No. 5) rules that the financial reward and subsidy accounts for 1/3 of the fund needed. The issuing of the Management Measures of Financial Reward and Subsidy for the One Project One Discussion System with Regard to Public Welfare Projects in the Village (2011) marked the abolition of the previous document. Article 8 of the new document writes that the central fiscal authorities allocate a certain proportion of the budget at the beginning of the year to cover the financial reward and subsidy for the one project one discussion projects on the local level and the proportion could be elevated if the central finance allows. Article 9 rules that the financial department on each local level should comply with local regulations to include the financial reward and subsidy fund for the one project one discussion projects that it is responsible to arrange in the budget, and increase the investment gradually. [^Back]
. ② Article 10 of the Management Measures for Fund and Labor Collection Through the One Project One Discussion Method by Villagers writes that after the scheme of fund and labor collection is submitted to and reviewed by the township people’s government, it should be further submitted to and reviewed by the department that is responsible for supervising and monitoring farmers’ burden of the county people’s government . . . . [^Back]
. ③ Article 13 of the Management Measures for Fund and Labor Collection Through the One Project One Discussion Method by Villagers writes that with regard to villagers that refuse to contribute fund and labor with no proper reason, the village council should educate them through persuasion, and it could deal with them according to the villagers’ self-governing regulations and village rules that are consistent with the laws and regulations and passed by the village meeting. [^Back]
. ④ In legal clauses and legal studies, self-governing statutes are used interchangeably with village rules. However, for the convenience of expression, this paper defines village rules in a broad sense, namely, rules of the village that are passed by the village meeting or the meeting of villager representatives. Self-governing statutes and the resolutions passed by the village meeting or the meeting of villager representatives are both included in village rules. [^Back]
. ① Among all the cases obtained by the author by searching village rules and fine in the database of Pkulaw, 20 relevant cases are chosen randomly. All the 20 cases are included in civil litigation, and only one case admits the validity of the penal clauses in village rules. It is a case of disputes over the advertisement offering reward between Ying Tangyin and the village council of Sanxiyuan Village, Sanxi Township, Jinyun County, and the quotation code of Pkulaw is CLI.C.36577748. [^Back]
. ② Article 96 of the General Provisions of the Civil Law of the People’s Republic of China writes as follows: the governmental legal persons, the legal persons of rural collective economic organizations, and the legal persons of basic-level People’s self-governing organizations are the special legal persons. [^Back]
. ③ In at least as early as 1998, Li Dakun proposed the concept of social administrative management and distinguished between the state administration and social administration (Li, 1998). In 2002, Jiang Ming’an pointed out the differences between the legal authorization, administrative entrustment, and social public administration (Jiang, 2002). [^Back]
. ① These cases are often classified into disputes over the infringement on the rights and interests of members of collective economic organizations, and the general basis is Article 63 of the Property Law: if a decision made by a collective economic organization, villagers’ committee or the person in charge infringes upon the legitimate rights and interests of any member of the collective, the infringed member of the collective may petition the people’s court to withdraw the decision. Provisions on Cause of Action in Civil Cases issued by the Supreme People’s Court includes them in the category of civil cases conspicuously (Category 39). [^Back]
. ① See the famous case of Guangzhou Geely vs. Chinese Football Association and case of Changchun Yatai vs. Chinese Football Association. In the former, the court treated the relationship between the Chinese Football Association and its members as an internal administrative legal relationship, while in the latter, the court ruled over the administrative legal relationship. [^Back]
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