Identification of members of collective economic organizations 202 1

First, the way to obtain the membership of rural collective organizations

There are two main ways to obtain the membership of rural collective organizations: one is original acquisition; The second is to join the acquisition. Primitive acquisition refers to the natural reproduction of population. Ancestors live in specific rural collective organizations, and the natural acquisition of membership in collective organizations is mainly manifested in birth. Joining acquisition refers to the way that natural persons who are not members of collective organizations obtain membership of collective organizations for certain reasons. It mainly includes marriage, adoption, national defense construction or other policy immigrants. Those who, based on marriage or adoption, produce and live in the place where the collective organization is located, and move their household registration to the place where the collective organization is located, have the membership of the collective organization. In addition, due to national defense construction or other policy reasons, people who enter the production and life of the collective organization through immigration and register their permanent residence in accordance with the law are also regarded as having obtained the membership of the collective organization. Two, three kinds of identification modes in judicial practice

Members of collective economic organizations are related to farmers' basic civil rights. At present, because there is no law, regulation or judicial interpretation to stipulate the membership conditions of collective economic organizations, there are three main modes to confirm the membership of collective economic organizations in judicial practice:

One is to adopt a single standard method, that is, whether a rural collective economic organization has a fixed residence is the standard for determining whether it has the membership of the collective economic organization. The second is to adopt the standard method, that is, to judge whether the household registration standard is consistent with the long-term production and life in the place where the collective economic organization is located. Third, according to the fact that the relationship between rights and obligations is formed, it is necessary to form a de facto relationship between rights and obligations and a management relationship with collective economic organizations.

However, these three standards also have some loopholes in practice: adopting a single household registration standard will easily lead to the abnormal population expansion of some collective organizations driven by various interests. According to the field investigation, in many rural areas in the urban-rural fringe, some people hang their children's and other relatives' accounts in rural collective organizations through improper means in order to obtain the benefits brought by land acquisition, resulting in a large number of "empty hanging households" and "hanging households" in rural real life. This will seriously damage the legitimate rights and interests of those who really should enjoy the interests of members of collective organizations. However, it is the latter condition that is of real practical significance based on household registration and supplemented by the compound standard of whether to produce and live in the place where the collective economic organization is located for a long time. However, this standard overemphasizes long-term fixation, which will not only reduce the enthusiasm of agricultural population to transfer to secondary and tertiary industries, but also hinder the narrowing of the gap between urban and rural areas until it is finally eliminated. Moreover, because there are different understandings on how to judge whether it constitutes "long-term", it is still difficult to solve the problem in the end. As for the criteria for the formation of rights, obligations and management relations, there are not only shortcomings in excluding "empty hanging households" and "suspended households", but also their judgment criteria are often extremely vague and sometimes may even bring unreasonable results.

Three, Shaanxi Province in determining the membership of rural collective organizations can refer to the applicable main provisions.

Summary of the Eighth National Conference on Civil and Commercial Trials of Courts (Civil Part)

Article 23 stipulates: "When trying disputes over the allocation of land compensation fees, we should comprehensively consider the parties' production and living conditions, household registration status and the basic livelihood guarantee function of rural land to farmers within the framework of existing laws and regulations, and identify relevant rights subjects. It is necessary to take whether the parties have obtained other alternative basic living security as an important consideration, carefully identify the loss of their rights subject qualifications, and pay attention to protecting the legitimate rights and interests of women, children and migrant workers according to law. "

The Summary puts forward the main factors that should be considered in identifying the subject of rights, and at the same time puts forward the important standard of "whether to obtain other alternative basic living security". This is because: first, simply taking household registration as the standard cannot solve practical problems such as household registration, and the identification of membership of collective economic organizations is easy to be simplified and expanded. Second, the consistency of rights and obligations is a constitutional principle of our country. No rights, no obligations, no obligations, no rights. If villagers want to become members of collective economic organizations and enjoy the corresponding rights, they must fulfill the corresponding obligations like other members. Third, the combination of household registration and obligations is more in line with the reality at the grassroots level and is easily accepted by collective economic organizations and their members.

On September 1 1 day, 2020, Shaanxi Higher People's Court issued the Trial Guide for Disputes over the Distribution of Land Compensation Fees for Members of Rural Collective Economic Organizations. Article 9 of the document stipulates: "The people's court shall examine whether the parties have the membership of rural collective economic organizations. We should comprehensively consider the household registration status of the parties, the reasons for the change of household registration, whether the parties have signed a family contract with the collective economic organization to obtain the right to contract the management of land, whether the parties live and live in rural collective economic organizations, and the basic living guarantee function of rural land to the parties. "

Fourth, the qualifications of special personnel

At present, when judging the distribution qualifications of special groups, such as prisoners, children born out of wedlock, married women, migrant workers, active servicemen, retired returnees, etc. Practices vary from place to place, and the inconsistency of judicial judgment standards is prominent. Combined with relevant regulations, mainstream views and judicial practice, the author summarizes the qualification identification and legal basis of the following special groups:

(a) Migrant workers and businessmen.

Because the current social security system in China is not perfect, the land of the original residence is still a part of its basic living security. Therefore, as long as such people have not died and obtained the membership of other collective economic organizations, even if they move their household registration to local cities, they should not be considered as losing the membership of this collective economic organization.

(2) College students with rural hukou.

Generally, students studying in colleges and universities have to move out of their registered permanent residence. The migration of household registration does not mean that it is divorced from rural collective economic organizations, but is based on an act stipulated in the management of student status. Students studying at school is not employment, and their life or tuition mainly comes from the supply of their parents or other family members. Therefore, they have not divorced from the relationship with the original collective economic organizations, so we cannot deny their qualifications as members of rural collective economic organizations and the right to distribute land acquisition compensation from them. However, although he moved his hukou back to the countryside after graduating from school, if he has been working outside and has a source of livelihood, it means that he has not regarded the land of his collective economic organization as his basic source of livelihood, and has actually divorced from the relationship with the original collective economic organization, so he should not use his hukou to confirm his distribution qualification in the village.

(3) Married women.

This is the most common and prominent type of distribution dispute in land acquisition compensation. In reality, if her parents' collective economic organization is relatively rich, married women are reluctant to move out of their registered permanent residence even if they work and live in their husband's collective economic organization for a long time. Once the collective economic organization to which her parents belong distributes the compensation for land acquisition, most of them file a lawsuit on the grounds that they are members of the collective economic organization, demanding the same share as other villagers. In this regard, if she goes to her husband's family to produce and live after marriage, and does not take the original village land as the basic source of livelihood, it means that there is no fixed production and life relationship between her and the members of the original collective economic organization. In this case, married women should no longer be recognized as members of collective economic organizations, and their distribution requests should be rejected. However, if the woman still cultivates the land in the original village after marriage, and pays the fund-raising retention on time, and fulfills the corresponding obligations without changing the original production and lifestyle, she should be recognized as a member of the collective economic organization and enjoy the same distribution rights as other villagers.

(4) the son-in-law who comes to the door.

According to the Civil Code, after registered marriage, the man can become a member of the woman's family according to the agreement of both men and women. Since female villagers can obtain the membership of the collective organizations to which men belong through marriage, men can also enjoy the same rights. According to the spirit of "Notice on Effectively Safeguarding Rural Women's Land Contract Rights and Interests" issued by the General Office of the General Office of the Central Committee of the CPC and the State Council, the son-in-law whose daughter has fulfilled the main obligation of support and the children born after the son-in-law should be given support and asked to enjoy the same income distribution rights as the villagers. At the same time, the qualification of door-to-door son-in-law is conducive to the harmony and tranquility in rural areas, especially for the elderly with women and children in rural areas, which has positive significance.

(5) Soldiers serving in the army.

During his military service, he can't be denied party member status just because his registered permanent residence has moved away. China's military service system stipulates that after the expiration of the oral military service, farmers will return to the army in principle. After their demobilization, if the government does not arrange corresponding jobs, they still return to the village to settle down, which means that these people still need the land of collective economic organizations as their basic source of livelihood, so they should be recognized as members of collective economic organizations and enjoy the right to distribution in land acquisition compensation. It should be noted that those who have retired from the army are either resettled by the state or choose to choose their own jobs, but they still receive a monthly salary from the army and enjoy urban social security. Therefore, retired soldiers will no longer enjoy the distribution right in land acquisition compensation.