Collective ownership of farmers to explore the subject of clarity (on)

Keywords: collective ownership of the subject / collective membership / members of the right

Summary: the clarity of the subject of collective ownership to private ownership is not the clarity of the criteria for judging. China has defined the collective ownership of the main body of the group members, so long as a specific collective farmers clear the collective membership, clearly a member of the collective body and its form, a clear exercise of collective ownership of the collective organization and collective rights and obligations of members and rules of conduct, you can clear the collective ownership of the subject.



The nature of collective ownership of property from the stArt, the main structural system of collective ownership, is to solve the ownership of land and other property of the collective, the collective problem of how to effectively exercise ownership Land resources are naturally occurring or naturally occurring resources, to provide for human survival, development, and enjoy the natural material and natural conditions of land as members of society with limited basic subsistence and scarcity, determine its ownership should be equitable access to members of society, and not monopolized by a handful of people, so the collective ownership In essence, the pursuit of fair value, that is, rural land and other property vested in the collective members of the group, no individual may exclude other members of the collective of all the collective and farmers group is divided according to rural communities of a certain community on a geographical basis, as the land's natural presence and immovable, which the community has a natural and permanence. to contact the community's land to land as the basic life-support system, people living in the community composition of the interests of close contact group is the collective community and farmers collective ownership of the subject is the various collective community, to complete its construction of the main system is to clear the legal status of the collective community, mainly related to collective community members and community collective relationship, that is composed of community members on how the community collective. including the following several legal issues: collective community membership (including members of the community and out of Canada, members of the collectivization in the form of collective organization of collective organization and collective rights and obligations of members.

Since the collective ownership of public ownership, in essence, is a collective reflection on the main form of ownership of private ownership not as simple in concept only understood in private ownership, collective ownership of farmers blame the biggest criticism than the collective ownership of the subject is unknown, thus proposed the privatization of collective farmers, or the idea of ​​nationalization, even insisting on retaining the collective ownership of farmers' views, but also that only collective ownership of the farmers in the transformation of the main body in order to clear the subject of collective ownership, so the collective ownership of the main structure and constructed to achieve through its clarity, is a matter of collective ownership of major problems. China's Property Law Article 59 stipulates: "the farmers collectively owned immovable and movable property belonging to the collective members of the collective." This fact has made it clear the collective ownership of the collective members of the collective subject is the reason many people accused of collective ownership of the subject is unknown, because people judge the clarity of ownership of the main criteria for only the private ownership criteria, the collective ownership of the subject clear judgments based on private ownership, private ownership can not be the standard to judge should be collective ownership of the characteristics from the judge as long as a specific collective farmers clear the collective membership (who is a collective member), clearly a member of the collective body and its form (what members of the collective, the collective ownership of the exercise clearly The collective organization and collective rights and obligations of members and rules of conduct (how to exercise ownership of the members of the group, clearly the collective ownership of the subject.

A community group membership

(Based on a collective membership

Group members qualified basis that members of the community based on the criteria to obtain the group members qualify. Have a collective membership of the members of the members of the collective, a collective ownership of the subject, exclude a collective membership of individuals, other collective societies for the collective land and property of all. In this regard, the Law does not make clear rules from the reality can be seen, the country's basic policy is to rural land ownership in rural land collective of rural collective community is based on a certain area that is rural village boundary demarcation, and land within the village boundary is a collective regional basis, the collective ownership of land determines the geographical scope of living in the village collectively owned village land to rely on the basic life-support as the village where the residents are (group collective members of their generation living in the collective region, relying on the village (group land as a basic social security, naturally has a village and group collective membership, the fact that their birth to join the village (group collective in terms of public ownership of collective land make up living residents of a pArticular community, through co-operation in the first generation of collective increases, the birth of their offspring with the qualifications of course access to the group members, group members based on their access to members of future generations is the collective identity, collective members that their parents Of course, the children of the group members to obtain qualifications as long as their access to the collective membership, their spouses and children of the group members because of their identity to obtain qualifications. can be seen in the socialist collective land ownership under the conditions of rural residents in the community as community land collective ownership of the collective rights of members of their talents, they are born that has the capacity of civil rights, that is with the rural collective membership. This qualification based on relying on the collective land as its basic social security, based on the so-called collective land is collective members of the basic social security is provided to him by the collective social existence and development of the basic conditions is the result of collective members can provide conditions for survival and development, membership makes sense, it is precisely because members need to rely on the collective conditions as provided by the survival and development of protection, collective ownership is valuable, so the group members collectively owned land is the basic right to social security for group membership have to rely on the collectively owned land for survival and development needs, but This need not in any given individual needs of members of society, but arranged in a pArticular social structure, individual needs. This arrangement is the social structure of rural and urban, agriculture, industry and other industries with distinction. pArt of the social needs of members In the rural areas engaged in agricultural production, provision of urban development and industrial and other industries based in rural settlers engaged in agricultural production, land is needed so the community to control the rural land resources, and social control of rural land is population is divided according to geographical and all manner of collective community control, this collective social control is different from private control and state control of collective social control is vested in the land of rural collective ownership of certain members of the community, so the history of settlement in given the fact that rural communities become collective members of the community need to rely on community based on the survival and development of land which is excluded from urban to rural land needs structural arrangements.

According to this structural arrangement, the ownership of land of rural farmers in each group, excluding any personal, private, urban to rural land excluded from all rural residents individual demand for land only through participation in the collective, fair land by the collective configured to individual needs, and not to take the configuration of the market and trading, private or collective land ownership in or between the private and the collective is prohibited transactions. This ensures that the land belongs to the community, by the allocation of social Justice in society member of the community members of society to meet the needs of the land is not a member of society in accordance with any arrangements for personal needs, but need to arrange according to the social division of labor, such as a city employee even though he personally believed that the land required, or even willing to return to rural go, unless a specific collective willingness to accept as a member, or he can not get qualified collective members, the collective land will not be available to him, the objective is not to rely on the people of rural land as a basic social security of people of urban people in the city employment, social security and enjoy the people. This arrangement is the urban-rural dual structure of rural collective land ownership legislation has a policy of such a system arrangement will ensure that all rural residents have a collective land, land under the protection of the collective survival and development to the exclusion of some people who own the land while the other part of the polarization without the possibility of a patch of land to achieve the basic social equity and Justice, on the other hand for industrial development and provides the basis for urban development when with the city's industrial development and the accumulation of complete social and economic development to the stage of industry nurturing agriculture, countries have the capacity to establish integrated urban and rural social security system, when the protection of rural land the role of farmers still can not be changed. because the social security establishment Zhishi pension and health care for farmers to provide a guarantee and does not provide farmers with the conditions of employment in the city, and the further development of a country can not not rural areas, could not do without agriculture, there must be some members of society are placed in rural areas engaged in agricultural production Agriculture and rural industrial and urban development, protection, both the public and provide the necessities of life, or industrial raw materials, or the environment, rural and agriculture are inseparable, therefore, on rural and agricultural society should provide basic protection, but also to ensure that rural land to achieve the public interest. As the agricultural characteristics of the natural weak industry, agricultural producers should be given protection, one of the most basic protection is to provide land for the community production, which requires the land remain in rural communities, the collective, the members engaged in agricultural production collective ownership. Collective ownership of land under the protection of agricultural producers to cooperate in the production can also be engaged in individual production, such as the family contract system, it can be a combination of individual and cooperative, even if the individual production conditions, due to the collective land All will not be because of natural disasters or market risk due to the farmers go bankrupt, even if the establishment of integrated urban and rural social security system, nor that farmers no longer need to land as a basic social security, and to change the collective ownership, while the land should continue to adhere to the collective ownership, rural land as a collective member of the basic social security. protect the farmers engaged in agricultural production, protect the foundation of agriculture, protection of rural progress and prosperity, so the fundamental basis for collective members is eligible for land protection depends on the collective, but this is very abstract standard, we should also study to determine the need to rely on the collective land to protect their survival and development of specific criteria. Specifically, as long as it settled in the rural communities, as recognized by the community, their families, their basic occupations in agriculture, should be with the collective membership. Settled in the rural community is natural to living a stable family unit living in specific communities, such as a certain village or village groups. Is accepted by the community based on community practices, community members recognize its contribution to the community members, for example, to the community homes of members who are not stable living in the community who can not obtain membership in the community of urban people who, though retired and returned to the stability of living in the community, but community members do not agree with its contribution to the community members. community members child's birth, members of the identity of the spouses to obtain marriage will be community members agree.

Family agriculture is the basic job, refers families to community land for agricultural production, there is no non-agricultural, but not to say that can not be engaged in other occupations, but that family agriculture is the most basic to professional, engaged in agriculture, while family members can engage in handicrafts, transport, repair and other occupations, but there must be agriculture, even into the city to work, but not completely out of agriculture. part of the family members of migrant workers, part of the home farm, or all family members into a period of time City workers, but they returned home some time farming, in short, as long as no permanent out of agriculture, agriculture is still the basic guarantee for the rural community residents with a collective membership. Nanhunnvjia based on communal identity of the habit of rule, male and when the marriage girl, once married, the woman as the man's family members to obtain the man's family where the collective membership, only child of her daughter's husband or family more than women without children households, only one daughter settled in the woman's family where the husband can get Jiti their collective membership. By this standard to judge, to settle in the collective community, recognized for community members, family members, basic vocational agriculture as a natural person-centered collective members. children of members of the collective, with members of the collective after birth qualifications, according to adopted children by adoptive relationship was established to achieve the collective membership, the spouse of a member of the group based on local social customs to obtain the collective membership.

(B characteristics of the collective membership

First, the collective members of the eligible basis, farmers rely on the collective members of the collectively owned land and other property as the basic social security.

Second, the collective membership to obtain a social allocation urban and rural social structure of people with different social status of farmers and farmers is eligible for public distribution, membership collective farmers from such a society on the distribution. Only rural residents can become members of the collective farmers, the public can not obtain membership in the collective farmers of urban people to return home or to the countryside when farmers have been accepted by the collective farmers, can become a collective member.

Third, the collective membership of exclusivity. A farmer in a given mass can have a collective membership, not simultaneously in a number of collective ownership of the group members qualify. A farmer with a collective membership of village groups, the You can have both the groups of villagers of the village where the collective membership, and the village where the township peasant collective membership, but can not have other groups of villagers or the village collective as well as other township collective membership. peasant collective membership of the uniqueness of is because the collective public ownership is a member of the collective basic social protection is provided by the community members through collective individual, a person can only be enjoyed in a specific Jiti this and other community organizations, members of the community to obtain qualifications are different, such as a people can invest in multiple companies with multiple shareholders qualifications.

Fourth, the collective membership of a variable. Peasant collective membership is the only, but not the same, on the basis of the current collective ownership of the collective members of the group although still far from free people of the Union, but not absolute personal attachment, the collective members have relative freedom, he would be in line with policy, legal and even used the case of changes in their collective membership. changes in two situations: one is the collective members of the "jump farm gate" to become public, the loss of the group members to qualify. Another situation is a collective membership of the collective farmers in different inter-changes, that is, from a member of the collective members of a collective B.

Fifth, to obtain the collective membership is free, and its loss is also free, there is no replacement, inheritance, sub-products, etc. For example, Joe Smith out of a collective, the proposed membership of the vacated replaced by the John Doe; Joe Smith out of a Jiti or split when asked collectively owned property, or the death of the heir to inherit his demands for collective property interests, are not allowed.

The characteristics of the farmers collective ownership by the farmers collective ownership of public nature of the decision.

(C group membership changes

Collective land property as social security, collective ownership by the collective members, it is public property in the community under the same area, the collective is stable there, but the changes in individual members is often the case, which involves changes in the collective membership of the problem.

1. To obtain a collective membership

Individuals obtained by joining the collective membership of the collective natural person to join the collective are the following:

(1 members of the collective child's birth or legally adopted children of the group members, their children, of course, the group members to obtain qualifications. Children whose parents married their mother or father and step-parents where Jiti added to obtain membership.

Present in rural areas, the collective members of the marriage the couple's accounts in a collective location is the same collective members, their children and their parents, of course, where the group is the same, and if the household registration and the collective membership to obtain the case of separation, couples can also be a different group members, for example, a village A man is the only son, B Village B woman is single women, two married A man in B Village and B female to live together, but it retains a village collective membership, A village has the right to land contractual management, with his wife B F B and the village collective membership has contracted in this case, the child's acquisition of a village or village group B membership shall be selected by his guardian, father the mother can be.

(2) members of this group was established by marriage, his spouse to obtain the collective membership. In this case, generally are followed in accordance with local customary Law in rural areas, the woman as the man's family members, where the man made the collective membership, single female households door-Law or multi-female households in a home where the woman's son can get a collective membership. widow move her husband to obtain her husband's wife's where the collective membership.

(3 As the national key construction projects or major natural disasters to the collective community of immigrants in this case, by the state to the collective community some of the relocation, the resettlement in the community group, immigrants moved into the collective community that made membership .

(4 other democratic decision by the members of the collective agreement of members. This type of migrant is usually free to join, for example, some male members of the young wife's family home, with a middle-aged wife and children and then return to their collective, by the collective members of the collective agreement made after membership. Some individuals who migrated to the collective membership, pay a fee to the collective or to fulfill certain obligations as a condition for naturalization, by members of the collective agreement to accept its contribution to the collective members. some do not participate in long-term The collective economic activities contribute to the collective economy, the collective will of its acceptance-oriented group members, for example, in Luohe of Nanjie, in Nanjie worked continuously for 10 years outside the village workers enjoy the same village, the villagers the benefits [1] (P. 149.

(5 collective community merged due to the merger collective community, members of the community was incorporated into the community to obtain membership, for example, a group of villagers into the village group B, a villagers' group that made the collective village group B membership , the original no longer exists a group of villagers. This happens when the rich poor village village merger process, for example, Zhangjiagang City, Jiangsu Province, the village is forever linked by the 800 villagers in 1978 in the Yangtze River beach reclamation of 0.54 square kilometers of land collective village built in 1984 run from the mill village debt, will have around five nearby villages incorporated in 2008 when the village area of ​​10 square kilometers and a population exceeding 1 million, per capita income reached more than 15,000 yuan [2].

In the above first, second, three cases of the collective membership of a statutory compulsory access should be made as long as people have made to achieve the requirements of the collective membership, the collective shall not refuse membership to obtain if the collective refusal to members meet the above criteria for eligibility from the administration of Justice can be directly identified according to their collective membership in the fourth case, the collective membership of a collective voluntary acquisition is made. who made only by the collective agreement, can to obtain the collective membership. fifth of the merger will have to occur based on collective community treated differently because, if the merger is a collective community was incorporated and recipients will have to voluntarily negotiate the merger agreement through the collective, is and into the community in order to achieve the collective membership of the group if the merger is due to uniform adjustment of administrative divisions, it is also a mandatory part of the merger, was incorporated and the recipient must accept the merger, was forced to get into those the collective membership.

Collective members eligible to obtain a collective member of the collective identity of the farmers in a particular establishment, as long as the establishment of the identity of group members, whether in the collective work in agriculture, are the collective members, for example, the collective result of the minors to obtain birth Jiti membership, its during the school does not work in agriculture, but he is a collective member of the collective members of the migrant workers who have not lost a collective membership. Laid off or retired city workers back to rural areas engaged in agricultural production, but they all retain the identity of urban workers, not members of collective farmers.

2. The loss of the collective membership

Disqualification collective members, the most common is the collective members of the death, but this article focused on the collective members of non-fatal cases the loss of their collective membership problem for group membership is made based on its dependence on the collective land protection, only it completely relies on the survival and development of collective land as security when the back off the collective loss of eligible class members here actually talk about the two cases, mainly referring to the former case due to marriage or adoption, to join other collective, a collective of other members, the latter refers to the peasant farmers of non-group members.

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(1 due to marriage or adoption and permanent as other members of the collective

By marriage or adoption to become the other group members, they should lose the original collective membership because of the mass is also a socialist public ownership, a specific natural person with a collective membership only, and thus obtain a natural person as long as other collective membership, but also the loss of the original collective membership, while a natural person can join the other group and get their membership, usually on rural society to comply with customary Law, although based on our freedom of marriage and marriage equality principle that the woman can become the man's family members, man may become the woman's family members, but just the traditional concept of the existence of discrimination uxorilocal husband on the issue, it is to solve this problem, the men's 1980 marriage law can become the woman's family members, but the Marriage Law only stipulates that the man can become the woman's family members, and does not provide a collective where the woman's family members, so if you do not belong to single women without children or families to marry than women without children households move only the case of a son, man to become the woman's family where the collective members will be affected by the collective to stop with this problem is not only linked the man to enter the block by the collective, and originally belonging to the collective members of the woman should quit after marriage where the man to join the collective and the collective, if she not out of the collective will also be strongly rejected. on this issue has been adjusted by customary law, and the civil habits are basically the same throughout the country.

Had to rely on the issue of basic civil customary law on the adjustment well, there is no outstanding issues over the years, but in recent years with the implementation of rural land contract system and a large number of rural land to be levied after the land requisition, distribution, make this issues become more prominent. land contract system early, due to demographic changes over the land in accordance with general contract adjustments every year or every few years, so this issue is not prominent. just to the right was too much emphasis on land management the stability of the proposed contract and management rights for 30 years the same policy, so it makes some people lose access to rural land contracting opportunities, especially after the woman married to her husband worry about where the collective points less than the land, so do not move out of account attempt to continue to share in their natal places where the collective contract. to reclaim the girl married, Qu Jin's wife on the points not to. wife points to can not reclaim her family's land mass, creating a vicious cycle, making the community residents and community identity of the group members can not simultaneously change the other reason is the large number of rural land has been requisitioned land compensation payments received by the distribution of married women have been induced to remain in the account without her parents moved people fu where Jiti home where the collective, and some married women do not move out of account not only their own, and will have to move into their husband's household where her family group in both cases, it will inevitably involve a married woman or married women without the problem of identification of eligible class members. Originally the collective membership is not difficult to identify, but there is no law on the collective membership of clearly defined and identified in the collective membership of the household to take the standard approach to the problem complicated. alone because it finds its collective household has a collective membership, which will cause the account to move out of the collective members do not move out of the large numbers of accounts, which not only violated the collective members of the qualification on the principles of customary law, and also caused confusion in the management of household registration. Taken residence as the household registration management, after they were married woman living with her husband's life should be her husband's account to move into the seat, if it refuses to move out of account the result of residence and domicile of the inconsistency, leading to confusion in household management, if only because it did not move out of account on the recognition of their collective membership, its members enjoy the owner's rights, on the contrary to the other collective members of the collective will and interests, public ownership and collective ownership is contrary to nature in recent years dealing with the collective land requisition, distribution disputes, the principle of collective distribution should be a woman married after her husband where the collective members, it does not move out of account those who are not entitled to assign rights and interests, while court decisions are generally based on the account identified in the original collective members of the plaintiff has a collective qualifications, sentence the defendant to the plaintiff class should be allocated land acquisitions. This is the money allocated for land disputes in sharp antagonism between the collective and the Justice of the Court's decisions are frequently not the collective service contracting and implementation of large masses of antagonism, the same defendant for the same plaintiff and the court should be a collective another decision and enforcement. this reflects is that our collective way for a major legal regulation of social relations, there is no provision for collective membership, so reconstruction of the collective ownership system, we must first define the subject, as a collective collective ownership of the main membership for marriage caused by the collective membership changes should be made mandatory by law.

Nothing more than the mandatory provisions of law, there are two options: First, based on collective ownership of community law and Nanhunnvjia habits, in addition to exceptions, married woman forced to destroy the original group membership. Nanhunnvjia habit to follow law, men and women, once married when the marriage, that woman as the man's family members to obtain the man's family where the collective membership, where her parents lost their collective membership. exception is single women without children households after marriage for girls without loss of the collective membership, while the woman her husband where group members can obtain qualifications, more female heads of households only have a daughter get married, you can keep the collective membership, the woman where her husband can get the collective membership, which is the national Most common practice of collective farmers. law to make this recognition, in line with the collective farmers most people understand the collective membership of the present problem is that although the habit of taking such a law, but there is no clear provisions of the law, sometimes by has a conflict of interest against individual members, or simply to residence, as determined by the collective membership of the judicial practice of the negative, if by law the principle of uniform treatment, then every group in between, the members of married women and married and a member of qualifications achieved and eliminate synchronization, so as to achieve a balance of interests.

Another option sucked the collective members of his marriage and family life as a collective membership of the collective ownership of the main separation, namely, collective membership not because of marriage has been forced to change. Female residents of rural communities do not get married where her husband eligible class members, without losing the collective membership, but her husband can get the collective membership, from the local social habits of rural female residents of the community in accordance with customary marriage where the husband made the collective membership, where her husband Jiti not refuse, which is in accordance with customary law must be accepted, with a mandatory, but if women do not want to leave her parents after marriage where the collective is not mandatory loss of their collective membership, which is taken into account, along with social progress in rural areas , women have their separate social identity of the subject, their marriage and family life and its social and economic life of the group members can be separated, especially in the current rural land management system structure, even if the married woman, does not affect all of its original mass up to the owner of the land rights of members, such as her family where she remains in the collective land contract and management rights, by her parents or brothers farming parents, also can follow farming, farming of the need to return to her parents work. With the rural transport convenience, in a county or county all the nearby collective community, married a woman back to her parents farming communities in the land of their contract is entirely feasible.

The first option more in line with the traditional peasant community and collective reality, but with the development trend of farmers' collective community is not entirely consistent. The traditional peasant community collectively, based on place of residence within the members of agricultural production based on a closed community, in the community to live the same life and engaged in agricultural production, and its membership is unique and determined while the current structure of rural communities as the population changes, development of market economy and the rural household registration system, employment system reform, with specific features of life in communities production function, there may be separation, for example, as a child, or double-female households in the family planning policy, a couple of farmers may have only one boy or only two daughters, if the adult children talk of marriage, the traditional male will be implemented married woman may marry the model does not work, therefore, as a new generation of farmers get married, regardless of the woman as the man's family members, or the man as the woman's family members, even though they are each other's family members, has added live mass become a collective member, or to retain the former residence of the collective rights of membership, if a person into the other family members living in each other but retaining the original location where the collective owners of the membership, this will happen with the collective identity of the residents living owner of the collective membership of inconsistency, for example, a village A village woman married to B male B, A and B men and women living in the village of B, although their accounts moved from the village A Village B, but A woman does not to B the village applied for the contracted land, and no return in a village of contracted land, so, A woman although can be a B villagers but did not of course to obtain B village collective land ownership of the main collective membership, she did not, of course loss of a village collective land ownership of the main collective membership If A female in the household into the village to B. B also apply for the village of contracted land, a land contract to their village of B then A woman made the subject of collective ownership of village B the qualifications of the group members, while the loss of the original village of collective ownership in a qualification, so a person can get the other side where the marriage relationship because of the collective owners of the collective membership, depending on whether the application and has joined the other side where the collective. their access to other group members where the conditions for eligibility are: First, I have transferred to other accounts where the collective, the second is located to each other collectively as the collective members of the collective ownership of the main application (for example, where the bulk application made to the other party contracted to or apply for shares in collective assets, third, the other where the Jiti have met their collective ownership of the subject to become a member of the collective application requests, for example, has contracted to its contract or grant of shares or the welfare of its collective assets allocated shares of these three conditions are missing one can not in this household is eligible to obtain a prerequisite for collective members, group members are not eligible to obtain the only elements, not just into the account, on course to achieve the collective membership, but also turn out that the residence is not lost as long as the collective members qualifications. residence in general and the collective membership, eligibility is consistent with the villagers, but the marriage made by the other group members where the loss of my original qualifications and eligibility of the group members can be isolated, the collective membership was mourning, should be based on the parties to apply to join the collective and the collective acceptance of its eligibility to join and give it to determine the facts when someone applies to join the collective, the collective agreement and give it to join their collective membership is no problem, problem is when people apply to join the collective result of marriage to obtain membership qualifications Jiti can refuse? with the collective result of the group members marry outside whether the loss of the collective membership? In this regard, China's Marriage Law provides only for married woman can become a family man, man may become the woman's family members, but does not require the woman after marriage where the man can become a member of the collective, man may become a member of a collective where the woman, so, although in normal circumstances, the marriage of both men and women in other family members to obtain qualifications at the same time, it made the other where the collective membership, but this is only habit, not from the law on the basis if the men and women get married, become a party to the other family members, if the other side where the Jiti refuse to become a member of the collective, the original where Jiti canceled their collective membership, the party would be difficult to make a legal basis, and the collective membership is for the farmers concerned about its survival to protect vital interests, while the other group to join or withdraw from the members of the rural social order and have a significant impact, so the law should make provision.

I believe that the law may not unilaterally impose: the collective can refuse to receive the members of the collective or the spouse of a member of the collective, but should be married from the collective members of its collective membership requirement is to make changes, from where the Jiti whether to join with the other whether from the original collective exit into account, and should be where the collective members of the original provisions of the collective is to exit as the focus would be whether the group members get married right out of the collective by the group members themselves, the collective members of my application is not clear退出原集体,或者已经申请退出本集体申请加入对方集体,但没有取得对方集体成员资格以前,原集体不得以集体成员已经结婚出嫁即取消其集体成员资格即使已经将户口转入对方所在集体,但不打算取得或者没有取得对方集体成员资格的,就不得以其结婚出嫁为由取消其本集体成员资格.在规定原集体不得主动取消本集体成员资格,对其资格基本保障的前提下,应当规定集体成员在其结婚成为对方家庭成员后,有申请加人对方集体取得集体成员资格的权利,同时赋予对方所在集体依据当地习惯法决定是否接纳该成员为本集体成员的权利.如果符合当地习惯法,集体就应当接纳提出申请的本集体成员的配偶成为本集体成员,如果不符合当地的习惯法,集体对其加人申请可以接受,也可以拒绝,完全取决于集体的意志.对于因婚姻关系引起的集体成员的资格变动,全国大多数地方实行的是男婚女嫁,女方成为男方家庭成员后即取得男方家庭所在集体的成员资格,独女户所招的上门女婿也可以成为女方的家庭成员和女方所在集体的成员,多女户可以有一个女子的配偶成为女方家庭及其所在集体的成员.如果从一个农户的单位考虑,女子出嫁保留了集体成员资格的,该户娶进的媳妇申请加入集体的也可以拒绝,以达到利益平衡.这样,既有利于保护有女无儿户的独女户、双女户的利益,也防止只进不出,多分多占,使多子女户与其他户的利益得以平衡.除此之外,因婚姻而变动集体成员资格的则取决于集体对于加入者的是否接纳.这样,即使因婚姻而申请加入集体的申请被集体所拒绝,但其原所在集体的成员资格并不丧失.在这些年的司法实践中,有关农民集体成员权益案件最多的,就是出嫁女参加集体征地补偿款分配和出嫁女的承包地收回纠纷.出嫁女为了参与娘家所在集体的征地款分配,在其结婚后并不将户口迁出,以其仍是集体成员要求参加征地补偿款的分配,但其娘家所在集体认为既然出嫁了就应当将户口转入婆家所在集体,其拒不转移户口,也应当丧失了本集体的成员资格,因而,拒绝其参与征地款的分配.出嫁女出嫁后,在婆家所在集体尚未分得承包地,其娘家所在集体就将其承包地收回.这类纠纷处理起来没有法律依据,难度很大.如果从立法上能够将结婚与集体成员资格的变动分开处理,将有利于这类纠纷的解决,有利于保护当事人,特别是妇女的合法权益.

为了防止某些集体成员结婚后首先保留原所在集体成员资格,取得征地补偿款分配等重大利益后,又以成为配偶对方的家庭成员为由,申请加入对方所在集体,成为对方集体成员,可以规定对方集体在一定的年限内有权拒绝其加入.因为在这种情况下,可以认为该成员已经在原集体获得了与其补偿利益相当年限的未来社会保障利益,其不应该再从其他集体取得集体的社会保障利益.例如,甲村A女嫁给了乙村B男,结婚后,A女不申请加入乙集体,保留了甲村集体成员资格,在甲村分得了10万元的征地补偿款后,又提出申请加入乙村集体要求取得承包地,在这种情况下,A女就可能多获得来自集体公有制的社会保障利益,因此,乙村有权拒绝其加入,例如5年内不允许其加入本集体.

总之,集体成员结婚成为配偶对方的家庭成员后,在原集体的成员资格并不当然丧失,而是经本人申请,加入对方集体,并经对方接纳取得对方集体成员资格后才能丧失.

(2因农民集体成员的身份的非农化丧失集体成员资格

所谓的农民集体成员身份的非农化,是指原来是农民的集体成员不再是农民,完全取得了非农社会成员身份.这里的非农化是指身份的非农化而不仅是职业的非农化.例如,迁入城市,永久性取得非农职业,享有稳定的城市社会保障.例如,原集体成员入伍参军,在军队提干或者上了军校,不再复员回村,集体成员的子女上完大学后成为公务员或者国家事业单位人员,农民集体成员进城工作将全家户口迁入城市,该户成员即不再是农民,作为集体成员的出嫁女嫁给了城市市民,即成为城市的社区居民,享有了市民的社会保障,取得市民资格.在这些情况下原集体成员就不再具有农民身份,就应当丧失原集体成员的资格.因为集体所有权作为公有制性质的财产权利,是对农民的社会保障性的权利,原农民集体成员随其身份的转化不再是农民的,就不再依赖集体所有权作为其基本的社会保障,而是取得了市民的社会保障.因此,当发生农民集体成员身份非农民化的事实时,其集体成员的资格即丧失.但是要注意农民集体成员身份非农化的事实,必须是确定的、永久地非农化的事实.如果只是一时性的从事非农职业或者离开农村生活,都不属于其身份的非农化.例如:农民集体成员进城打工或者经商期间未完全纳入城市社会保障体系的,集体成员服兵役期间,集体成员在受义务教育和大学教育期间,集体成员因犯罪服刑期间,集体成员下落不明而尚未死亡宣告期间.

城乡二元化社会结构安排是一种历史的过程,其发展趋势将走向城乡一体,在这个过程中将有大量的农业人口转移出农村,走向城市,完全取得市民的资格,从而丧失农民集体成员的资格.但是现代社会的发展,也还是要有农村和农业,总有一部分社会成员还要在农村从事农业或者农村经济,农村的土地就仍然属于留在农村的农民集体成员的土地,由农民集体所有.保持农村土地的农民集体所有是国家的基本土地政策,是促进农业和农村发展,以及城乡协调发展的保证.





Notes:
[1]金运:<<一个澳门记者眼中的南街村>>,解放军文艺出版社2004年版.

[2]张先国、顾立林:"壮大集体经济新探索",载<<半月谈>>2008年第21期.

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