农民集体与农村集体经济组织关系之二元论
高海农民集体与农村集体经济组织关系之二元论
Dualism of the Relationship Between Farmers' Collectives and Rural Collective Economic Organizations
期刊名称：《法学研究》
期刊年份：
作者：高海
单位：
中文关键词：农民集体;农村集体经济组织;集体资产股份;股份经济合作社
英文关键词：farmers' collective; rural collective economic organization; shares of collective assets; joint-stock economic cooperative
中文摘要：
基于坚持农民集体所有权、推进集体资产股份实质化改革的基本立场，宜以异质论与替代论并存的二元论，阐释农民集体与农村集体经济组织的关系。就资源性资产而言，采取农民集体是所有权主体、农村集体经济组织是代表行使主体的异质论；就经营性和非经营性资产而言，采取农村集体经济组织替代农民集体成为所有权主体的替代论。二元论不仅有实定法根据、所有制和股份制类型化的佐证，有助于化解一元论的困境，而且从保障全体成员受益、满足资源性资产所有权客体不可分割、避免集体权益外溢等视角看，二元论中的异质论强化了资源性资产公有制的实现。基于经营性资产所有权客体可分割、成员持股份额不等受益不均、非本集体成员持股导致集体权益外溢等客观情况，二元论中的替代论没有弱化经营性资产公有制的实现。二元论下，农民集体或经济合作社与股份经济合作社的成员认定条件不一；资源性资产不宜表达为农村集体经济组织成员集体所有；农村集体经济组织可以破产；保障经营性资产公有制的实现，需限制集体权益外溢，扩大成员受益范围，促进成员平等受益。
英文摘要：
Based on the basic position of adhering to ownership by farmers’ collectives and promoting the substantive reform of the collective asset share system, it is advisable to explain the relationship between farmers’ collectives and rural collective economic organizations through the dualism of heterogeneity theory and substitution theory. As far as resource assets are concerned, the heterogeneity theory that farmers’ collectives are subjects of ownership and rural collective economic organizations are representatives of ownership should be adopted. For operational and non-operational assets, the substitution theory that rural collective economic organizations replace farmers’ collectives as ownership subjects should be adopted. Dualism is not only supported by the legal basis, ownership and shareholding system, but also helps to resolve the confusion of monism. From the perspectives of ensuring the benefits of all members, satisfying the requirement of indivisibility of the property rights of resource assets, and avoiding the outflow of collective rights, the heterogeneity theory is conducive to the realization of public ownership of those assets. On account of the objective situations such as the divisibility of operational assets, different shares leading to different returns, and the outflow of collective rights caused by non-member shareholdings, the substitution theory in the dualism won’t weaken the realization of the public ownership of operational assets. Under dualism, the membership identification conditions of farmers’ collectives or economic cooperatives are inconsistent with those of joint-stock economic cooperatives, resource assets should not be expressed as collectively owned by members of rural collective economic organizations, and rural collective economic organizations can go bankrupt. To guarantee the realization of public ownership of operational assets, it is necessary to limit the outflow of collective profits, expand the scope of members benefits, and promote equal benefits among all members.
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