Wu Bihan, Law School

Abstract: Farmers collective member rights in our country is a special identification right, is bearing the weight of the function of guaranteeing the collective community and always having law attribute of private rights. As a kind of right in private law, according to the difference of purpose of exercising right, farmers collective member rights contain two subdivisions -self-profit right and common-profit right. Farmers collective member rights is a essential right for Chinese farmers, but China's current laws has not yet make definite systematic provision for it, only regulate it in scattered legal provisions, these scattered legal provisions cannot provide adequate foundation of guaranteeing farmers collective member rights. It also exists dilemma of member rights merely cannot be exercised substantially and relieved efficiently in practice. The result is the insufficiency of the systematical faultless legal foundation of exercising and guaranteeing the farmers collective member rights. In practice the relevance in exercising member ownership and peasant collective is knotty and the pathway of realizing right is also not smooth Meanwhile, the imperfection of legislation and the deficiency of law in standard membership cause the relief channel of farmers' rights is not smooth after infringement, safeguarding right hard. According to the practice, the imperfection of legislation lead to the recognized standard and the proceedings of member ownership chaotically. The chaos of the recognized standard triggers copious disputes in exercising contract right of rural land, realizing homestead right to assign and gaining collective economic interests, forming obstacle for exercising member ownership unavoidably. It also makes the farmers in peasant collective exercising right inadequately. The insufficient judicial remedy, the restricted litigation right and the impaired right of rescission make the demand cannot be achieved fully. Therefore, this article is aimed at perfection of member right system by the way of probing farmers collective member rights in existing legislation as well as the breakthrough for preservation incomplete of member ownership in practice. This paper holds that the house register standard, the age and house register standard, the fact standard are not applicable than eclecticism standard, that is adopt the house register standard as well as virtual responsibility. Farmers collective member rights should be limited by legislation to prevent abusing of member rights, that is means that when peasant collective infringed by members, peasant collective could penalize the members to prevent the members abusing their rights; for the exhaustion of local remedies, the way of administrative lawsuit is narrow, but the civil action is more frequent. For prevent the abuse of right of collective, we should construct the rescission action.

Read the full article here:   农民集体成员权制度研究.pdf