我国农民专业合作社法律问题研究

发布时间：2018-07-04 20:27

本文选题：农民专业合作社 + 法人　；参考：《武汉大学》2013年博士论文

【摘要】：农业的地域性、季节性和不稳定性决定了其生产和经营具有极大的灵活性,这一特性决定了农业劳动者比工业劳动者在生产中需有更多的独立自主性,我国的历史和实践均证明家庭是最适合农业生产的基本经营单位。以家庭承包经营为基础,统分结合的双层经营体制是我国农村的基本经营制度,然而在农户和集体经济组织这两个层次的经营结构中,由于集体经济组织法律主体地位不明确,财产权属性模糊,治理结构欠缺,行政色彩浓厚,导致双层经营体制无法发挥其应有的作用。在农业进入市场经济时代后,市场经济活动的主体越来越多地以团体身份出现,家庭作为个体经济范畴难以抵御大的市场风险,此时农户联合起来组建自己的互助组织彰显团体力量成为客观必然,应运而生的农民专业合作社成为农业经营不可或缺的组织形式,其在提高农民的组织化程度、促进农业现代化、增强农产品市场竞争力等方面均发挥了重要作用。《农民专业合作社法》作为我国合作社领域第一部法律,较为全面地规定了农民专业合作社的各项法律制度,对于我国现代农业合作社的发展具有深远影响。合作社在我国经历了曲折的发展道路后,新时期我国农民专业合作社不仅要面对西方合作社在发展过程中所普遍面临的问题：合作社资本筹措能力不足、管理人员缺乏激励、决策效率低下、合作社服务目的与经营盈利的固有矛盾；还要面对我国的特有现实：农民专业合作社多由农业大户、龙头企业、集体经济组织或基层供销社领办,它们往往占有合作社多数股份,拥有合作社的绝对话语权,合作社内部民主治理基础缺失,核心成员与普通成员之间存在利益矛盾。如何从法律角度破解以上难题进而完善农民专业合作社法律制度,是本文拟解决的问题。本文研究思路是立足我国国情,借鉴其他国家(地区)的成功经验,从法律主体角度以农民专业合作社作为研究对象,对农民专业合作社的法律性质、社员及社员权、.财产制度、治理结构等问题进行深入研究,进而提出对我国《农民专业合作社法》立法完善的建议。除导论部分之外,本文共有六部分组成。第一章是对农民专业合作社制度价值的分析。首先,通过对各国合作社制度源流考察,揭示合作社价值变迁规律。欧、美发达国家的合作社运动是一种自下而上的弱者自发形成的社会运动,合作社作为微观经济领域特定的经济主体承载的主要是经济的机能。我国合作社制度一度成为强制性的制度安排,合作社成为被赋予改变国家经济面貌的“宏观调控”工具。其次,通过对合作社与其他经济组织的异质性考察,合作社自身价值凸现,合作社在农业领域的制度优越性是其他经济组织无可比拟的。最后,我国农民专业合作社的制度价值考量,受政治环境和经济环境的共同影响。农民专业合作社在历史改造后的回归,应当摆脱成为一种“政策工具”,其价值定位应是处于弱势地位的农户联合起来的一种社员自助的经济手段。对于社会公平与经济效率这两个价值目标,就我国现阶段农业弱势、农民贫苦的现实而言,农民专业合作社应坚持公平优先,兼顾效率的制度价值,实现公平与效率的良性互动。农民专业合作社成员严重异化、内部民主治理基础缺失的合作实践,更需要公平机制来平衡核心社员与普通社员的利益诉求。第二章是对农民专业合作社法律性质的研究。首先,在对国外农业合作社法律地位考察的基础上,通过对我国农民专业合作社财产及责任等构造要素的分析,用法人制度的基本理论论证了农民专业合作社法人地位的成立。其次,以农民专业合作社独立法人属性为研究进路,以两种法人分类形态为线索,深刻辨析了学界围绕农民专业合作社而进行的属性之争。在我国现行《民法通则》所确定的企业法人—非企业法人的分类体系下,由于农民专业合作社具有组织性、法定性和经营性等特征,应当明确农民专业合作社的广义企业法人属性。而在营利法人—非营利法人的学理分类体系下,农民专业合作社法人以社员之间的互助和服务为己任,虽然从事生产经营活动,但它向社员返还利润实质是对社员的多付或少收,实际上仍属于社员所有,因此其既不以营利为目的,实质上利润也未在成员中分配,属于非营利法人。对农民专业合作社非营利法人属性的认定,离不开对非营利法人再分类的认识,大陆法系营利性与公益性的法人目的二元论过于绝对,英美法系中互益性法人形态与农民专业合作社相契合。第三章是对农民专业合作社社员及社员权的研究。法律对农民专业合作社社员资格的开放抑或限制的权衡,在法的价值层面是公平与效率的价值冲突,在私法层面是私法自治与国家强制的共同影响。《农民专业合作社法》对自然人社员的行为能力和农民身份的限制、对团体组织社员业务关联性的限制不甚合理,因此对行为能力欠缺的自然人社员资格的准入、自然人社员从农民身份向农业劳动者的转变、对团体组织社员业务关联性的开放及权利的限制,是我国农民专业合作社社员资格的应然选择。农民专业合作社社员权是指社员对合作社法人享有的独立的民事权利。基于农民专业合作社的组织特性,其社员权表现出与其他社团法人所不同的内容,表现在社员与合作社的交易权、表决权、盈余分配请求权、退社权等方面。社员权行使存在两方面障碍,主观上普通社员行使社员权愿望不强烈,客观上“社员民主控制”受阻。由于法律仅规定了农民专业合作社社员的实体性权利,还应当配置救济的各种程序,如赋予社员对社员大会决议瑕疵时的诉权,以及赋予社员对理事、经理的危害行为的停止请求诉权,是保护农民专业合作社社员权的有效途径。第四章是对农民专业合作社财产制度的研究。首先,农民专业合作社特殊的制度安排使其资本呈现出资本约定、资本可变的特征,外部环境和内部特征共同决定了现阶段我国农民专业合作社未规定最低注册资本是理性的。农民专业合作社在实际运行过程中现金资本并不充裕,非货币财产出资成为必要,土地承包经营权入股农民专业合作社具有法律上的可行性,但需解决好土地承包经营权的转让、抵押等实际问题。其次,法律规定农民专业合作社对其财产享有占有、使用和处分的权利,但依该表述无法将农民专业合作社对其财产享有的权利界定为所有权,而界定为其他性质的权利也面临法律依据不足。合作社财产复杂的客观事实,导致用所有权的概念已无法涵盖合作社愈加多样化和自由化的财产范围,法人财产权的概念则能够很好地适用于农民专业合作社的财产定性。再次,我国农民专业合作社按股金分配盈余为主的实践,与按交易额(量)分配盈余的法律要求相背离,反映了合作社成员间利益的不平衡。按交易额(量)分配盈余作为合作社基本分配原则应当坚持,按股金分配应在法律限定的范围内进行,是现阶段农民专业合作社分配制度的现实选择。第五章是对农民专业合作社治理结构的研究。农民专业合作社治理结构与公司治理结构在决策机制和内部组织机构设置上存在差异,但合作社治理结构仍应当借鉴公司等法人治理结构的成功经验。农民专业合作社治理结构理论基础溯源于公司治理结构相关理论。合作社所有权和控制权两权分离理论,以及由此衍生的委托—代理理论是合作社治理结构基础理论的重要组成部分。在此基础上,吸收利益相关者理论,旨在平衡社员、领办人、负责人、大股东和其他利害关系人等各方权益。农民专业合作社治理的实质即所有者与经营者之间的利益制衡机制,针对社员、理事等在内的合作社内部参与者之间的权力制衡与义务设置。我国农民专业合作社制度自建立以来,其法人治理结构不规范、运行机制不健全等问题严重困扰了合作社健康、有序地发展,须通过完善成员大会制度、理事会制度、监事会制度来优化农民专业合作社治理机构,通过完善民主决策机制、激励机制、监督机制来改善农民专业合作社的治理机制。第六章是对我国《农民专业合作社法》的完善建议。通过对农民专业合作社的法律性质、社员与社员权、财产制度、治理结构等核心制度的研究,发现《农民专业合作社法》仍然存在诸多不足之处,不利于农民专业合作社的依法构建和运行。继而对《农民专业合作社法》的立法完善进行了思考,提出了具体建议。具体建议内容包括：建议完善农民专业合作社社员权的取得与丧失、行使与救济的规定；建议明确农民专业合作社财产的法律性质、完善社员出资的规定；建议完善农民专业合作社的成员大会制度、理事会制度、监事会制度的相关规定。
[Abstract]:The regional, seasonal and unstable agriculture of agriculture determines its great flexibility in production and management. This characteristic determines that agricultural workers need more independence than industrial workers in production. The history and practice of our country prove that the family is the most suitable basic operation unit for agricultural production. In the two levels of rural household and collective economic organization, the legal subject status of the collective economic organization is not clear, the property rights are vague, the governance structure is deficient and the administrative color is strong, which leads to the double operation system can not be played. After the agriculture enters the market economy era, the main body of the market economic activity appears more and more in the group identity, and the family is difficult to resist the big market risk as the individual economic category. At this time, the peasant households join up to form their own mutual help organization to show the physical strength of the group. It has played an important role in improving the degree of organization of farmers, promoting agricultural modernization and enhancing the competitiveness of agricultural products. As the first law in the field of cooperatives in our country, the law of farmers' professional cooperative law provides a comprehensive provision for the various farmers' professional cooperatives. The legal system has a profound influence on the development of modern agricultural cooperatives in China. After the cooperative development of our country, the cooperatives should not only face the problems that the Western cooperatives face in the process of development in the new period. The inefficiency of policy efficiency and the inherent contradiction between the purpose of the cooperative service and the profit of the operation should be faced with the unique reality of our country: the farmers' professional cooperatives are mostly carried out by the big farmers, the leading enterprises, the collective economic organizations or the basic supply and marketing agencies. They often occupy the majority of the shares of the cooperatives, have the absolute discourse power of the cooperatives, and the internal democracy of the cooperatives. The problem of how to solve the above problems and improve the legal system of farmers' professional cooperatives from the legal point of view is a problem to be solved in this paper. As the research object, the cooperative cooperatives are deeply studied on the legal nature of the farmers' professional cooperatives, the members and members' rights, the property system, the governance structure and so on, and then puts forward the suggestions to improve the legislation of the farmer professional cooperative law in China.
In addition to the introduction, this paper consists of six parts.
The first chapter is the analysis of the value of the farmers' professional cooperative system. First, through the investigation of the source and stream of the cooperative system in various countries, the law of the change of the cooperative value is revealed. The cooperative movement of the developed countries is a kind of social movement spontaneously formed by the weak from the bottom of the United States, and the cooperative is carried by the special economic subject in the microeconomic field. China's cooperative system has become a mandatory institutional arrangement, and the cooperative becomes a "macro control" tool to change the state's economic outlook. Secondly, through the investigation of the heterogeneity of the cooperative and other economic organizations, the cooperative value of the cooperative is prominent, and the institutional superiority of the cooperative in the field of agriculture. It is unparalleled in other economic organizations. Finally, the consideration of the system value of the farmers' professional cooperatives in China is influenced by the political and economic environment. The return of the farmers' professional cooperatives should be free from becoming a "policy tool" and the value orientation of farmers in the disadvantaged position should be joined together. The economic means of self-help for social workers. For the two value goals of social equity and economic efficiency, the farmers' professional cooperatives should insist on fair priority, give consideration to the institutional value of efficiency, and realize the good interaction between fairness and efficiency. The lack of cooperation in the practice of democratic governance requires fair mechanism to balance the interests of core members and ordinary members.
The second chapter is the study of the legal nature of the farmers' professional cooperatives. First, on the basis of the investigation of the legal status of the foreign agricultural cooperatives, through the analysis of the structural elements of the property and responsibility of the farmers' professional cooperatives in China, the basic theory of the legal person system is used to demonstrate the establishment of the status of the legal person of the farmer's cooperatives. The independent legal person of the professional cooperative is the research route, and the two legal person classification forms as the clue, the debate about the attribute of the academic circle around the farmer's professional cooperatives is deeply analyzed. Under the current classification system of the enterprise legal person legal person of the general rule of civil law in China, the farmer professional cooperative is organized and legal. With the characteristics of sex and management, the property of the generalized enterprise legal person of the farmer's professional cooperative should be clearly defined. Under the academic classification system of the profit legal person and non profit legal person, the farmer professional cooperative legal person is responsible for mutual assistance and service among the members of the community. Although it is engaged in the production and operation activities, the return of profits to the members of the social members is substantially more to the members of the community. In fact, payment or collection is still owned by the members of the community, so it is not for the purpose of profit, and the substantial profit is not distributed among the members, which belongs to the non profit legal person. The recognition of the non profit legal person attribute of the farmer professional cooperative is inseparable from the recognition of the non profit legal person reclassification, the dualism of the profit and public interest legal person of the civil law system. In the common law system, the mutual beneficial corporate form is compatible with the farmers' professional cooperatives.
The third chapter is the study of the rights of the members and members of the farmers' professional cooperatives. The balance of the law to the membership of the farmers' professional cooperatives is the value of the law. In the value level of the law, it is the value conflict between fairness and efficiency. In the private law level, the private law and the state coercion is the common effect. The limitation of the capacity of behavior and the identity of farmers is not very reasonable, so the restrictions on the membership of the community members are not very reasonable. Therefore, the access to the qualification of natural persons, the transformation of the natural man from the peasant identity to the agricultural workers, the opening of the association and the restriction of the rights of the community members, is the farmer's special. The rights of members of the cooperative members of a cooperative society should be chosen. The right of members of a farmer's professional cooperative refers to the independent civil rights of a member of a cooperative corporation. Based on the organizational characteristics of the farmer's professional cooperative, the right to members of the farmer's professional cooperative is different from the legal person of other associations, the right to vote, the voting rights and the distribution of the surplus. There are two obstacles in the right to claim and the right to retreat. The desire of the ordinary members to exercise the right to membership is not strong, and the "democratic control of the members of the social members" is obstructed objectively. Because the law only stipulates the substantive rights of the members of the farmers' Professional cooperatives, it is also necessary to configure the various procedures for the rescue of the society, such as giving the members to the members' general assembly. It is an effective way to protect the rights of farmers' professional cooperatives to discuss the right to sue in defects and to give members the right to stop the right to sue the directors and managers.
The fourth chapter is the study of the property system of the farmers' professional cooperatives. First, the special institutional arrangements of the farmers' professional cooperatives make the capital present a capital agreement, the characteristics of the capital variable, the external environment and the internal characteristics together determine the irrational minimum registered capital of the farmers' professional cooperatives at the present stage. In the course of actual operation, the cash capital is not abundant and the non monetary property investment becomes necessary. The land contracted management right shares the legal feasibility of the farmer's professional cooperative, but it needs to solve the practical problems such as the transfer of the land contract management right and the mortgage. Secondly, the law stipulates that the farmers' professional cooperatives possess the possession of their property, so that the law stipulates that the farmers' professional cooperatives have possession of their property, so that the law stipulates that the farmers' professional cooperatives have possession of their property. The right to use and dispose of it, but it is unable to define the right of the farmer's professional cooperative to its property as ownership, and the rights defined as other nature are also faced with insufficient legal basis. The complex objective facts of the cooperative property have led to the inability of the concept of ownership to cover the more diversified and liberalized property of the cooperative. The concept of the legal person's property right can be well applied to the property of the farmers' professional cooperatives. Again, the practice of the farmers' professional cooperatives according to the dividend distribution mainly deviates from the legal requirements of the distribution of the surplus according to the amount of the transaction. It reflects the imbalance of the interests among the members of the cooperatives. As the basic distribution principle of the cooperative, the distribution of the stock should be carried out within the limits of the law, and it is the realistic choice of the distribution system of the farmers' professional cooperatives at the present stage.
The fifth chapter is the study of the governance structure of the farmers' professional cooperatives. There are differences between the governance structure of the farmers' professional cooperatives and the corporate governance structure in the decision-making mechanism and the internal organization, but the cooperative governance structure should still learn from the successful experience of the corporate governance structure such as the company. It is traced to the theory of corporate governance. The two rights separation theory of cooperative ownership and control and the resulting principal agent theory are important components of the basic theory of the cooperative governance structure. On this basis, the stakeholder theory is absorbed to balance the members, the leaders, the leaders, the major shareholders and the other interests. The essence of the farmers' professional cooperative governance is the balance of interests between the owners and the operators, the balance of power and the obligation between the members of the co-operatives, such as the members and the members. Since the establishment of the system of farmers' professional cooperatives in China, the corporate governance structure is not standard and the operating mechanism is not. In order to improve the health and orderly development of the cooperatives, we must improve the management mechanism of farmers' professional cooperatives by perfecting the system of members' general assembly, the system of the Council and the board of supervisors to optimize the farmers' professional cooperative governance institutions, and by perfecting the democratic decision-making mechanism, incentive mechanism and supervision mechanism.
The sixth chapter is a perfect proposal for the law of farmers' professional cooperatives in China. Through the research on the legal nature of farmers' professional cooperatives, the rights of members and members of the community, property system and governance structure, it is found that there are still many shortcomings in the law of farmers' professional cooperatives, which is not conducive to the construction and operation of farmers' professional cooperatives according to law. The legislative perfection of the law of the farmers' professional cooperative law is considered, and the specific suggestions are put forward. The specific suggestions include: suggestions to improve the acquisition and loss of the rights of the farmers' professional cooperatives and the provisions of the exercise and relief; to make clear the legal quality of the property of the farmers' professional cooperatives and to improve the provisions of the contribution of the members of the social members; and suggestions for perfection. The relevant regulations of the membership system of the farmers' professional cooperatives, the council system and the board of supervisors system.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2013
【分类号】：D923

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