总有视角下家庭土地承包经营权的不可继承性

发布时间：2018-06-10 12:40

本文选题：土地承包经营权 + 家庭承包　；参考：《浙江大学》2017年硕士论文

【摘要】：家庭承包取得的土地承包经营权能否继承,是司法实践中存在争议的问题。尽管2009年的公报案例"李维祥诉李格梅继承权纠纷案"表明了最高法院的态度,但并非没有值得深思的地方。通过对于《农村土地承包法》、《物权法》中有关规则的梳理,可以发现:一般认为,基于《农村土地承包法》第三十—条和第五十条的规定,家庭承包取得的林地承包经营权和其他方式承包取得的土地承包经营权可以继承。对于家庭承包取得的其他土地承包经营权能否继承,《农村土地承包法》和《物权法》均未作出规定。《农村土地承包法》的立法资料虽然显示出了不认可继承的倾向,但并未体现于法律的具体条文。因此,有必要进一步分析《农村土地承包法》,基于农村土地承包实践的现实,把握家庭承包下土地承包经营权的赋权模式,进而探讨家庭承包取得的土地承包经营权能否继承。焦点在于《农村土地承包法》第十五条和"增人不增地,减人不减地"的国家政策,也涉及农户与农户成员的关系。农户不具有法律人格,在性质上属于非法人团体,是家庭承包取得的土地承包经营权的形式主体。农户成员是权利的实质主体,对于农户名义下的土地承包经营权既不是按份共有,也不是共同共有,而是总有。家庭承包取得的土地承包经营权的继承问题,可以细分为两个问题:其一,在部分农户成员死亡、农户依然存续的情况下,死亡农户成员的继承人能否继承该权利;其二,在农户成员死亡导致农户消灭的情况下,死亡农户成员的继承人能否继承该权利。对于第一个问题,依总有的机理,权利的享有与成员的资格相始终,一旦成员因死亡而丧失资格,自然也不再享有权利,权利归于总有团体由其他成员共享。对于第二个问题,基于土地承包经营权的赋权模式,农户消灭后,家庭承包取得的土地承包经营权消灭,承包土地应由发包方收回。对于收回的土地加以利用产生的收益,应当由集体经济组织成员共享。所以,家庭承包取得的土地承包经营权不能继承。虽然有观点认为,《农村土地承包法》第三十一条第二款规定家庭承包取得的林地承包经营权可以继承,但是支持这一观点的理由并不充分。在解释该条文时应当进行目的性限缩,不能据此条文认为家庭承包取得的林地承包经营权可以继承。因此,在处理土地承包经营权继承纠纷案件时,首先应当查明土地承包经营权是以何种方式取得的。对于通过招标、拍卖、公开协商等其他方式承包取得的,应当适用《继承法》的规定,允许继承。对于通过家庭承包方式取得的,不应当认可继承:农户中仍有成员存在的,由其继续分享或独自行使土地承包经营权;农户成员全部死亡的,土地承包经营权消灭,承包土地应由发包方收回。
[Abstract]:Whether the land contract management right obtained by family contract can be inherited is a controversial issue in judicial practice. Although the 2009 communiqu 茅 case, Li Weixiang v. the dispute over the succession of Li Gomei, shows the Supreme Court's attitude, it is not without food for thought. By combing the relevant rules of the Rural Land contract Law and the Real right Law, we can find that it is generally believed that, based on the provisions of articles 30 and 50 of the Rural Land contract Law, The right to contract management of woodland obtained by family contract and the right of land contracting acquired by other means may be inherited. Neither the Rural Land contract Law nor the Real right Law provides for the inheritance of other land contractual management rights obtained by family contracting. Although the legislative data of the Rural Land contract Law shows a tendency to disapprove inheritance, However, it is not reflected in the specific provisions of the law. Therefore, it is necessary to further analyze the "Rural Land contract Law", based on the reality of rural land contracting practice, to grasp the power model of the right of land contracting and management under the household contract, and then to discuss whether the right of land contracting and management obtained by the family contract can be inherited. The focus is on Article 15 of the "Rural Land contract Law" and the national policy of "increasing people not increasing land, reducing people not reducing land", which also involves the relationship between farmers and their members. Peasant households have no legal personality and belong to unincorporated organizations in nature, which is the form subject of land contractual management right obtained by family contracting. The peasant household members are the substantive subject of the right, and the land contractual management right under the name of the farmer is neither shared by share nor shared jointly, but always has. The inheritance of the land contractual management right obtained by the family contract can be subdivided into two problems: first, whether the heirs of the dead peasant household members can inherit the right when some peasant household members die and the farmers still exist; second, If the death of the peasant household member results in the extinction of the peasant household, can the heirs of the dead peasant household member inherit the right. For the first question, according to the mechanism of the total existence, the enjoyment of rights and the qualifications of members are always the same. Once a member is disqualified by death, he will naturally cease to enjoy rights, and the rights will be attributed to groups that are shared by other members. For the second question, based on the mode of empowerment of the right of land contract management, after the elimination of the peasant household, the right of land contracting and management acquired by the household contract shall be eliminated, and the contracted land shall be recovered by the contracting party. The income arising from the utilization of the recovered land shall be shared by the members of the collective economic organizations. So, the land contract management right obtained by family contract can not be inherited. Although some people hold that the second paragraph of Article 31 of the Rural Land contract Law provides that the right of contractual management of woodland obtained by family contracting can be inherited, the reasons for this view are not sufficient. In the interpretation of this article, the purposive restriction should be carried out, and it can not be concluded that the contractual management right of woodland obtained by family contract can be inherited. Therefore, in dealing with land contractual management rights inheritance disputes, we should first of all find out how to obtain land contractual management rights. The provisions of the inheritance Law shall be applied to those contracted through tendering, auction, public consultation and other means, and inheritance shall be permitted. For those obtained through family contracting, inheritance shall not be recognized: where there are still members of the peasant household, they shall continue to share or exercise the land contractual management right alone; if all the peasant household members die, the land contractual management right shall be eliminated. The contracted land shall be recovered by the contracting party.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.32

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