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土地“新产权”的实践逻辑——对湖北S镇土地承包纠纷的学理阐释

郭亮，华中科技大学法学院。   

  1. 郭亮，华中科技大学法学院。
  • 出版日期:2012-03-20 发布日期:2012-03-20
  • 通讯作者: 郭亮，华中科技大学法学院。 E-mail: guoliang2002002@sina.com
  • 作者简介:郭亮，华中科技大学法学院。
  • 基金资助:

    本文为2011年教育部人文社会科学研究青年项目“当前农村土地纠纷的产生原因、特征及化解机制研究”（11YJCZH046）、华中科技大学自主创新基金“税费改革后的农村土地纠纷研究”(2011WC044)，以及复旦大学社会科学高等研究院跨学科学术工作坊“制度转型期的农村地权冲突研究” （IASFudanXSGZF10002）等课题的最终成果之一。

The Logic in the Practice of “New Land Property Rights”: Theoretical Interpretation of the Land Disputes in STown, Hubei Province

Guo Liang, Law School of Huazhong University of Science and Technology.   

  1. Guo Liang, Law School of Huazhong University of Science and Technology.
  • Online:2012-03-20 Published:2012-03-20
  • Contact: Guo Liang, Law School of Huazhong University of Science and Technology. E-mail: guoliang2002002@sina.com
  • About author:Guo Liang, Law School of Huazhong University of Science and Technology.
  • Supported by:

    This paper was a result of project “The Research on the Causes, Characteristics and Solutions of Land Disputes in Rural Areas”（11YJCZH046），which was granted by Humanities and Social Research Youth Item of Ministry of Education, and of “The Research on Land Disputes after Tax Reform”（2011WC044）,which was granted by Innovation Fund of Huazhong University of Science and Technology,and of “The Research on Conflict of Land Rights in Transition”（IASFudanXSGZF10002），which was granted by Fudan Institute for Advanced Study in Social Sciences.

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摘要：

本文根据湖北S镇的调查发现，土地承包纠纷的发生有着深刻的社会制度性原因。在三起土地纠纷中，农户的抗争依据不是来自现有的土地法权规定，而是来自前期制度形态所塑造的土地认知方式。祖业权、生存权和土地占有的平均主义诉求是这种土地认知的部分内容。这种土地认知与新产权的规定发生了冲突，以致基层政权无法有效地应对。因此，在现有的政治框架内，土地产权的变革需要虑及产权变革与社会制度之间的关联性。

关键词: 土地纠纷 ,   农户的土地认知方式 , 新产权

Abstract:

In rural China, land property ownership is composed of two parts. One part is the ownership by the collective, and the other part is the land rental contract right by the farmers. Since 2000, changes and adjustments of the state’s laws and policies have expanded the farmers’ actual control over and utilization of land. In this context, land disputes over the land rental contract right have emerged in large quantities in rural villages. As the reality of STown in Hubei Province has shown, land possession patterns have experienced many changes in more than 50 years since the land reform, which means that the same piece of land usually has belonged to different owners in different historical periods. When the land rental contract right is yet to be determined once again and it is expected to be in effect for a long time, in their fight for their own benefits, farmers have activated their memories of land ownership and the traditional way of recognizing land’s ownership, which have become important rationales to obtain their land rental contracts. The traditional land system in the past 50 years has shaped the Chinese farmers’ cognitive structure to understand land property rights. Traditionally, it has been the state and the village communities to determine the rights to the land. Farmers’ understanding of land property rights is not based on contracts in the sense of modern market, but on the political and socioethical basis. Their arguments stem out of the right to inheritance, the right to survival, and the equality principle in land distribution. Although these reasons to defend one’s rights are no longer valid in the new land laws or policies, they were effective for a long time in the previous laws and policies. Furthermore, due to the extension of politics, they still represent their legitimacy in the socialist ideology. Thus, the conflicts between the traditional understanding of land distribution and the new land laws are an important trigger at the institutional level of the land disputes over land rental contracts. To a large extent, grassrootslevel governments are ineffective at resolving such conflicts as the conflicts are rooted in the inherent tension of farmers’ insisted reasoning based on the residuals of the past land system and the current land system. This indicates that, within the current political system, any reform of land property rights must consider the continuity between the ownership reform and the social system.

Key words: farmers’ cognitive structure about land ,   land disputes ,   new property rights