>>>welcome 河南大学, You have logged in.
Logout History Contact us  
Font Size:  A A A Search “Fabao” Window English 中文 = 简体  繁体
  Favorite   DownLoad   Print
 
No.1 of Second Group of Model Cases regarding Guaranteeing People's Livelihood Issued by the Supreme People's Court: Wang Shurong v. He Fuyun, Wang Xisheng, et al. (case of dispute over rural land)
最高人民法院公布保障民生第二批典型案例之一:王淑荣与何福云、王喜胜等农村土地承包经营权纠纷案
【法宝引证码】

No.1 of Second Group of Model Cases regarding Guaranteeing People's Livelihood Issued by the Supreme People's Court: Wang Shurong v. He Fuyun, Wang Xisheng, et al. (case of dispute over rural land)
(case of dispute over rural land)
最高人民法院公布保障民生第二批典型案例之一:王淑荣与何福云、王喜胜等农村土地承包经营权纠纷案
[核心术语]
城市居民;土地承包经营权
[争议焦点]
1.在土地延包之前,已将户口迁入设区的城市落户的原承包人,是否继续享有土地承包经营权?
[案例要旨]
由于我国长期存在城乡二元体制,城市居民享有基本的社会保险和福利,而对农村村民而言,土地承包经营权则是农户成员的基本生活保障,农户家庭为本集体经济组织的承包方。依据《农村土地承包法》第二十六条第三款规定,承包期内,全家迁入设区的市,转为非农业户口的,应当将承包的耕地和草地交回发包方。可见,农业户口转为非农业户口,是丧失农村土地承包经营权的条件。因此,在土地延包之前,已将户口迁入设区的城市落户的原承包人,已属城市居民,不再属于集体经济组织的农户的成员,不再继续享有土地承包经营权。
No.1 of Second Group of Model Cases regarding Guaranteeing People's Livelihood Issued by the Supreme People's Court: Wang Shurong v. He Fuyun, Wang Xisheng, et al. (case of dispute over rural land) 最高人民法院公布保障民生第二批典型案例之一:王淑荣与何福云、王喜胜等农村土地承包经营权纠纷案
1. Basic Facts 基本案情
On October 30, 2007, the Rural Land Contracting Arbitral Commission of Taobei District, Baicheng City, Jilin Province rendered a ruling that Wang Shurong was entitled to the contractual management of the land that was cultivated by Wang Zhenxue. Wang Zhenxue, Plaintiff in the first instance, requested the People's Court of Taobei District to confirm that: (1) the contract on land contractual management entered into between the Villagers' Committee of Sanyue Village and Wang Zhenxue was valid; and (2) Wang Shurong was not entitled to the contractual management of the land that was contracted by Wang Zhenxue. Wang Shurong argued that she had one fifth of the right to the contractual management of the land that was contracted by Wang Zhenxue. Wang Shurong was married on January 25, 1975. Since her husband was a serviceman, her permanent residence was still registered under Wang Zhenxue's household. In 1982, when Sanyue Village contracted out land, Wang Shurong and Wang Zhenxue's household were family members. The five family members contracted 5.4 mu of land, 1.08 mu per capital and the head of the contract household was Wang Zhenxue. In January 1992, Wang Shurong relocated her permanent residence to Baicheng City and obtained a non-agricultural account. In the second round of land contracting in 1997, the household of Wang Zhenxue undertook 4.82 mu of land and obtained the Rural Land Contractual Management Certificate in 2005. Wang Shurong was not recorded as a co-owner. 2007年10月30日,吉林省白城市洮北区农村土地承包仲裁委员会作出裁决:王淑荣对王振学所种土地享有承包经营权。一审原告王振学遂向洮北区人民法院请求:1、确认三跃村村委会与王振学签订的土地承包经营合同有效;2、确认王淑荣对王振学承包的土地无承包经营权。王淑荣答辩称其在王振学承包的土地中享有五分之一的承包经营权。王淑荣1975年1月25日结婚,由于其丈夫是军人,故户口仍在王振学家。1982年,三跃村发包土地时,王淑荣与王振学一家系同一家庭成员,5口人承包5.4亩地,人均1.08亩,承包户户主为王振学。王淑荣的户口于1992年1月迁入白城市并转为非农业户口。1997年第二轮土地承包时,王振学家承包4.82亩土地,并于2005年取得《农村土地承包经营权证》,共有人没有记载王淑荣。
Wang Zhenxue died in October 2010 and the respondent was altered from Wang Zhenxue to He Fuyun (wife of Wang Zhenxue) and Wang Xidong and Wang Xisheng (sons of Wang Zhenxue). 王振学于2010年10月死亡,被申请人由王振学变更为其妻何福云、其子王喜东、王喜胜。
After a hearing of first instance, the court rendered a judgment that: (1) the land contract entered into between Wang Zhenxue and the Villagers' Committee was legally valid; and (2) Wang Shurong was not entitled to the contractual management of 1.08 mu of land that was contracted by Wang Zhenxue. After a hearing of second instance, the Intermediate People's Court of Baicheng City rendered a judgment that Wang Shurong's appeal should be dismissed and the original judgment should be sustained. After a retrial, the Intermediate People's Court of Baicheng City rendered another judgment that: (1) the judgment of second instance and item (2) of the judgment of first instance should be revoked; and (2) item (1) of the judgment of first instance should be sustained. In December 2009, the Higher People's Court of Jilin Province rendered a ruling to dismiss the application of Wang Shurong for retrial. In June 2012, after the case was heard, the Higher People's Court of Jilin Province rendered a judgment that: (1) the judgments of both first instance and second instance and the original civil judgment on retrial should be revoked; and (2) the claims of Wang Zhenxue should be dismissed. 一审法院判决:1、王振学与村委会签订的土地承包合同有效;2、王淑荣对王振学承包的土地不享有1.08亩承包经营权。白城中院二审判决:驳回王淑荣的上诉,维持原判。白城中院再审后判决:1、撤销二审判决和一审判决第二项;2、维持一审判决第一项。2009年12月吉林高院裁定驳回王淑荣的再审申请。2012年6月吉林高院提审后判决:1、撤销一、二审判决及原再审民事判决;2、驳回王振学的诉讼请求。
2. Judgment 裁判结果卡在了奇怪的地方
The Supreme People's Court heard the case and held that as an urban resident, Wang Shurong was not entitled to land contractual management in the second round of extended land contracting. First, in January 1992, Wang Shurong transferred her permanent residence from Wang Zhenxue's household to the jurisdiction of Xinli Police Station of Baicheng City. It was provided for in paragraph 3 of Article 26请你喝茶 of the Law on the Contracting of Rural Land that “During the contract period, where a household that undertakes the contract shifts to a districted city, thereby becoming a non-agricultural account, the contracted farmland and grassland shall be returned to the party awarding the contract. If the household undertaking the contract refuses to return such land, the party awarding the contract shall be entitled to withdraw it.” It was clear that the transfer of a permanent residence to a districted city to become a non-agricultural account was the condition for divesting of the right to the contractual management of rural land. Since there were no specific provisions on the condition for rural residents' divesting of the right to land contractual management in the current Chinese laws, it could be determined only by reference to the most similar terms of laws. The aforesaid provisions should serve as the legal basis for determining whether Wang Shurong was entitled to the contractual management of the land contracted by the household of Wang Zhenxue in the second round of land contracting. At that time, the permanent residence of Wang Shurong has been relocated to a districted city and she has obtained an urban resident. Therefore, she should no longer be entitled to the contractual management of rural land. The local second round of land contracting was still governed by the provisions of Article 15 of the Law on the Contracting of Rural Land and was conducted on the basis of farmer households of the collective economic organization. In the extended land contracting, the land was only measured other than adjusted, which complied with the policy of “land remains unchanged regardless of any change in the number of farmer household members.” By then, Wang Shurong has not been a family member of Wang Zhenxue's household and therefore she was not entitled to the land contractual management in the second round of extended land contracting. Second, the Rural Land Contractual Management Certificate was an important basis for determining whether the party concerned was entitled to the contractual management of rural land in a civil case. 最高人民法院提审认为,王淑荣作为城市居民,在二轮土地延包中不享有土地承包经营权。第一,王淑荣于1992年1月将户口从王振学家迁至白城市新立派出所辖区内落户。《农村土地承包法》第二十六条第三款之规定:“承包期内,全家迁入设区的市,转为非农业户口的,应当将承包的耕地和草地交回发包方。承包方不交回的,发包方可以收回承包的耕地和草地。”可见迁入设区的市、转为非农业户口,是丧失农村土地承包经营权的条件。由于目前我国法律没有对农村居民个人丧失土地承包经营权的条件作出明确具体的规定,因此,只能比照法律中最相类似的条款进行认定,上述规定应当成为认定在第二轮土地承包中,王淑荣是否对王振学家承包的土地享有承包经营权的法律依据。此时王淑荣的户口已经迁入设区的市,成为城市居民,因此不应再享有农村土地承包经营权。当地第二轮土地承包仍依照土地承包法第十五条之规定,以本集体经济组织的农户为单位。延包的含义是只丈量土地,不进行调整。符合增人不增地、减人不减地的政策。王淑荣此时已不是王振学家庭成员,在二轮土地延包中不享有土地承包经营权。第二,《农村土地承包经营权证》是民事案件中认定当事人是否具有农村土地承包经营权的重要依据。
Wang Zhenxue appealed because the arbitrament made by the Rural Land Contracting Arbitral Committee of Taobei District confirmed that Wang Shurong was entitled to the contractual management of 0.964 mu of land that was contracted by his household. It was specified in the arbitrament that if any person was against the arbitrament, he or she may appeal within 30 days. Therefore, the court should accept the case and rendered a judgment. In addition, Wang Shurong did not request the local villagers' committee to separately contract out land to her; instead, she claimed that she was entitled to the contractual management of 1.08 mu of land that was contracted by the household of Wang Zhenxue. Therefore, the aforesaid disputes over civil rights and interests between equal parties should not be settled through administrative proceedings. The judgment of the Supreme People's Court revoked the retrial judgment rendered by the Higher People's Court of Jilin Province and the civil judgments rendered by the Intermediate People's Court of Baicheng City, and sustained the judgment of second instance of the Intermediate People's Court of Baicheng City. 王振学起诉是因为洮北区农村土地承包仲裁委员会作出的裁决,确认王淑荣在其家庭承包的土地中享有0.964亩土地承包经营权。该裁决书中有如不服裁决,可在30日内向法院起诉的内容。因此,法院应当受理此案并作出判决。另外,王淑荣并未请求当地村委会另行向其发包土地,而是主张在王振学一家承包的土地中,享有1.08亩承包经营权。故对于上述发生在平等主体之间的民事权益之争,不应通过行政诉讼解决。最高法院判决撤销了吉林高院的再审判决和白城中院民事判决,维持白城中院的二审判决。
3. Significance我不休息我还能学 典型意义
According to the four judgments rendered by the courts of Jilin Province at three levels, some courts had different views on whether a court may accept a civil lawsuit that was brought by the party concerned on the ground that he or she was entitled to the contractual management of the land that was contracted by any other person and whether a court may determine whether a natural person was a qualified member of a rural collective economic organization under certain circumstances. As specified in this case, a court should, by reference to paragraph 3 of Article 26 of the Law on the Contracting of Rural Land, render a judgment on whether the party concerned was entitled to the contractual management of rural land on the basis of confirming whether the party concerned was a qualified member of a rural collective economic organization. Therefore, this case was of guiding significance to some extent. 从吉林省三级法院的四个裁判结果看,部分法院对是否应当受理当事人以其在他人承包的土地中享有承包经营权为由提起的民事诉讼以及是否可以在一定条件下对某个自然人是否具有某个农村集体经济组织成员资格作出认定的问题,认识不一。本案明确了法院在审理此类案件中,应当比照《农村土地承包法》第二十六条第三款之规定,在认定当事人是否具有某个农村集体经济组织成员资格的基础上对其是否享有农村土地承包经营权问题作出裁决,因而具有一定指导意义。
     
     
Scan QR Code and Read on Mobile
【法宝引证码】        北大法宝en.pkulaw.cn
Message: Please kindly comment on the present translation.
 
Confirmation Code:
Click image to reset code
 
  Translations are by lawinfochina.com, and we retain exclusive copyright over content found on our website except for content we publish as authorized by respective copyright owners or content that is publicly available from government sources.

Due to differences in language, legal systems, and culture, English translations of Chinese law are for reference purposes only. Please use the official Chinese-language versions as the final authority. Lawinfochina.com and its staff will not be directly or indirectly liable for use of materials found on this website.

We welcome your comments and suggestions, which assist us in continuing to improve the quality of our materials as we dynamically expand content.
 
Home | About us | Disclaimer | Chinese