农地入股合作社的立法理念更新

兼顾土地承包经营权作为用益物权的自由支配属性和土地承包经营权的生存权保障功能,是当前学术界主张的农地入股的主流立法理念。但是,基于此立法理念进行的制度设计,既可能面临实施的困境和法理上的自相矛盾,也可能会导致入股者享有的农地增值收益权、融资担保权、征收补偿权和农地发展权严重受限或者受损。而将农地入股的立法理念更新为对农民生存权和发展权的双重关怀并以此构建相关制度,不仅可以弥补当前农地入股主流立法理念及其制度设计的缺陷,有化解农地入股中的一系列二元主义争议,而且还有充分的法理根据和现实依据,有利于实现农地入股合作社的立法价值。

Legislation Idea Renewal on Farmland Buying-into Cooperative Society

Attention to both free control attribute and right-to-existence safeguard function of farmland usufructuary right is the current mainstream legislation idea on farmland buying-into cooperative society. But the system designs which based on the legislation idea both possibly face implementary difficulty and self-contradiction of legal theory, and perhaps cause the farmland increment usufruct right, the financing guarantee right, the expropriation compensation right and the farmland development right which enjoyed by investor are limited or damaged seriously. Legislation idea on farmland buying-into cooperative society is renewed into safeguard both the right-to-existence and the right-to-development and on which building the related system designs are based, not only benefit to remedy the flaw of the current mainstream legislation idea and the system designs on farmland buying-into, but also to melt a series of dual-principles disputes resulted from farmland Buying-into and have the full legal theory basis with the reality basis, and benefit to come true legal values on farmland buying-into cooperative society.