Perspective | Confirmation of Members of Rural Collective Economic Organizations - A Discussion on the "Rural Collective Economic Organization Law"
Published:
2024-12-31
The confirmation of members of rural collective economic organizations is a complex task that requires practical consideration and specific analysis of individual issues. There is currently no unified standard for this. Therefore, Article 11 of the "Rural Collective Economic Organization Law" is very much open to discussion.
Content Summary:The confirmation of members of rural collective economic organizations is a complex task that requires practical consideration and specific analysis of specific issues, and there is currently no unified standard. Therefore, Article 11 of the "Rural Collective Economic Organization Law" is very debatable.
Keywords:Rural collective economic organization members, rural economy, Article 11 of the Economic Organization Law, Villagers' Committee Organization Law
Moreover, regardless of the relationship between these two laws, we can see an important distinction between them in rural governance — the former emphasizes villagers' autonomy, while the latter emphasizes standardized management.
Why is this the case? It is unclear due to the lack of legislative participation. However, based on my experience of being born and raised in rural areas and still frequently traveling back and forth, I believe: rural areas are a mixed bag, fundamentally lacking the conditions for villagers' autonomy, such as strong family ties, complex personal relationships, a warmth that exceeds public morality, and ignorance that exceeds the law. With social progress, rural revitalization requires good governance in rural areas, and villagers' autonomy cannot fully achieve this goal, especially when it comes to specific interests. In this regard, the introduction of the "Rural Collective Economic Organization Law" is undoubtedly keeping pace with the times, and its intent and content are undoubtedly advanced.
As for its advancement, experts and scholars will elaborate on it — after all, there is still a long time until it officially takes effect on May 1 next year. I am neither an expert nor a scholar, and I have no opportunity to showcase its merits; with a magnifying glass, I have found a few flaws — nitpicking, whether for no reason or to show off, is just my personal opinion, ultimately, the flaws do not overshadow the merits.
1. The "Rural Collective Economic Organization Law" does not clarify its relationship with the "Villagers' Committee Organization Law".
First of all, conceptually, rural collective economic organizations are clearly larger than villagers' committees. This can be seen in Article 2 of the "Rural Collective Economic Organization Law", which states that rural collective economic organizations include township-level rural collective economic organizations, village-level rural collective economic organizations, and group-level collective economic organizations.
Moreover, in terms of content, the "Rural Collective Economic Organization Law" also includes and expands upon the provisions of the "Villagers' Committee Organization Law", as the main content of the "Villagers' Committee Organization Law" is basically included in Chapter 4 of the "Rural Collective Economic Organization Law".
Therefore, the relationship between the "Rural Collective Economic Organization Law" and the "Villagers' Committee Organization Law" should be one of inclusion or absorption.
However, if it is an inclusion relationship, then theoretically, the implementation of the "Rural Collective Economic Organization Law" would also mean the end of the "Villagers' Committee Organization Law". In this regard, relevant information can also be read from Article 64 of the "Rural Collective Economic Organization Law": where there is no rural collective economic organization established, the villagers' committee and villagers' groups can legally perform the functions of the rural collective economic organization; this "acting on behalf of" implies a transition, not a long-term solution.
However, the "Rural Collective Economic Organization Law" still retains relevant content or expressions regarding the "Villagers' Committee", and it can be interpreted as being in a parallel and equal relationship with the "Rural Collective Economic Organization". For example, Article 5 states that the responsibilities of the rural collective economic organization include "(10) supporting and cooperating with the villagers' committee".Villagers' Committeeto carry out villagers' autonomy under the leadership of the village party organization." The first paragraph of Article 34 states, "Members of the board of directors or supervisors of the rural collective economic organization may, depending on the situation, hold concurrent positions with members of the village party organization leadership team."Villagers' Committee成员可以根据情况交叉任职。”
If the "Rural Collective Economic Organization Law" and the "Villagers' Committee Organization Law" are in an inclusion relationship, then it is somewhat inappropriate for the "Rural Collective Economic Organization Law" to retain the term "villagers' committee" in the above provisions; if the two laws are in a parallel relationship, then the "Villagers' Committee Organization Law" seems somewhat redundant.
2. The "Rural Collective Economic Organization Law" has innovations in member confirmation but lacks breakthroughs.
The "Rural Collective Economic Organization Law" separately establishes Chapter 2 to stipulate "members", which is its innovative aspect — indicating that member identification is of great importance; however, regarding the conditions for confirming members and their rights and obligations, the "Rural Collective Economic Organization Law" does not have breakthroughs.
Article 11 of the "Rural Collective Economic Organization Law" stipulates that residents who have their household registration in or have previously been in a rural collective economic organization and have formed a stable rights and obligations relationship with the rural collective economic organization, relying on collectively owned land and other properties of the rural collective economic organization for basic living security, are members of the rural collective economic organization.
Accordingly, the conditions for confirming members of the rural collective economic organization can be summarized as: 1. Household registration in or previously in a rural collective economic organization; 2. Forming a stable rights and obligations relationship with the rural collective economic organization; 3. Relying on collectively owned land and other properties for basic living security.
This follows the long-standing judicial experience of the courts and does not present any innovations. For example, in case (2021) Supreme Court Administrative Review 2117, the court ruled: since both the first and second instance courts did not support the compensation and resettlement request on the grounds that the parties could not prove their relatively stable production and living relationship with the village collective economic organization or rely on the land of the village collective economic organization as their basic living security, the court did not support their request for retrial. However, reviewing the case — the parties involved were minors, who registered their household with their father at birth, later moved to their mother's household in the involved collective economic organization, and subsequently, the land of the collective economic organization where their mother was located was requisitioned, but they did not receive compensation or resettlement — we find that, objectively speaking, this experience has not played a substantive role in resolving disputes and may even increase the confusion in application. After all, the actual situation of rural collective economic organizations may involve various circumstances, and the above experience is clearly insufficient.
1. Female, married to a village outside, but household registration has always been in this village, with or without contracted land in this village — whether with or without contracted land is due to the rural land contracting policy, and a 30-year contracting period without change may lead to some people not being allocated land from birth to marriage (the situation without contracted land below is similar).
2. Female, married into this village, but household registration has not been transferred to this village, with or without contracted land in other villages.
3. Female, married into this village, and household registration transferred to this village, but without contracted land in this village, while having contracted land or none in the original village.
4. Newborn, registered in this village, but without contracted land.
5. Minor, originally not registered in this village, later moved to this village with father or mother, but without contracted land (may include adoption situations).
6. Working or doing business outside, household registration in this village, but without contracted land.
7. Working or doing business outside, household registration moved out of this village, but has contracted land.
8. Working or doing business outside, if the household registration is moved out of the village and then moved back, whether there is contracted land or not.
9. After retirement, discharge from military service, or returning home (such as local dignitaries), if the household registration is moved back to the village, but there is no contracted land.
……
Although Article 12 of the "Law on Rural Collective Economic Organizations" has supplements, it only involves the aforementioned situations 3, 4, and 5; moreover, even if the situations are the same or similar, in practice, they often vary due to individuals and collective economic organizations, mainly due to the reason of villagers' autonomy, which is akin to a protective magic for rural collective economic organizations.
Therefore, without effective regulation of villagers' autonomy, the confirmation of members of rural collective economic organizations will still have a gap between ideals and reality, and Article 11 is obviously too idealistic.
First,the formation of a stable rights and obligations relationship with rural collective economic organizations is itself a false proposition. According to Articles 13 (Rights) and 14 (Obligations) of the "Law on Rural Collective Economic Organizations", the obligations of members of rural collective economic organizations are mostly passive obligations, not proactive, especially from the perspective of the managing counterpart (the council); the only proactive obligation, which is participation in activities, is merely exercising voting rights, but this is more of a right than an obligation, and rights are precisely what members of collective economic organizations sometimes desire but cannot obtain, thus leading to disputes—proving the stability of rights with rights that cannot be obtained is like proving hunger with a drawing of a cake.
Secondly,using collectively owned land and other properties as basic living security is also vague. How should basic living security be understood? If the land is left uncultivated, or transferred to others for free or at a very low price, can it be understood as not using this for living security, and does this mean losing membership in the collective economic organization? For newborns and women who marry into the village but do not have contracted land—especially for those whose parents or women have been working or doing business after marrying into the village—how should it be determined whether they use land and other properties as basic living security? Collective land, especially contracted land, used to be the anchor of rural areas, but with the changes of the times, the situation is changing, especially when land output cannot meet people's aspirations for a better life, land has become like a chicken rib, and how can a chicken rib serve as basic living security?
Again,even the relatively objective household registration is not as simple as it seems. For example, according to the requirements of the recent years' Central Document No. 1, we have encouraged farmers to work and settle in cities on one hand, while on the other hand, we have required the protection of the land contracting rights and collective income distribution rights of farmers who settle in cities, as well as the legitimate rights and interests of members of collective economic organizations. However, the objective situation is that many people go without returning, and the reason is stuck on the household registration. Therefore, using household registration as a condition is quite ironic for some people.
In summary, the confirmation of members of rural collective economic organizations is a complex task that needs to be combined with reality, analyzing specific issues specifically, and there is no—at least currently—unified standard. Therefore, Article 11 of the "Law on Rural Collective Economic Organizations" is very debatable.
After all,the guiding role of the lawrequires that the provisions or interpretations of the law should be clear, not ambiguous, and should not be inconsistent with reality; otherwise, it is better to temporarily set it aside.
Although Article 12, Paragraph 5 of the "Law on Rural Collective Economic Organizations" stipulates that the people's congresses and their standing committees of provinces, autonomous regions, and municipalities directly under the Central Government can make specific provisions for the confirmation of members of rural collective economic organizations based on this law and the actual situation of their administrative regions. But without the skin, where will the hair attach? After all, no matter how specific the provisions are, they cannot deviate from the principles of Article 11.
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