【摘要】 农村承包地的调整变动困扰着承包经营权的确权和"三权分置"的完善,调整的根据是集体经济组织成员基于生存保障公平地获得承包地的观念和机制、成员享有要求集体分配土地的民事权利即包地权的理论,以及农民集体应当拥有调地权能的主张。本文认为,均分土地保障生存的观念和机制等已不能适应当下的治理格局和法治背景;包地权不是民法上的权利,而应当是宪法性权利;承包经营权应当立足农业市场化、规模化、现代化来进行定位和保护,农民集体不应调整已发包给农户的土地,农户的土地经营权不应被扰动。更多还原

【Abstract】 The readjustment of contracted lands frustrates the confirmation of the right to operate contracted land and improvement of separating the ownership of rural land, contract rights and management rights. The readjustment is based on the concept that the members of the collective economic entities shall have the right to undertake the contracts equally for survival, on the theory that members enjoy the right to claim for distribution of the land, and on the view that the collective economic entities shall have the right to adjust the land. In this paper, we believe the current governance pattern and the idea of rule of law can no longer adapt to the status quo. The right to contract a rural land is not a right in civil law, but a constitutional right. The right to operate contracted landing should be established and protected on the basis of large-scale production, the marketization and modernization of agriculture. The collective economic organizations should not readjust the land that has been given out to households and households’ right to manage the contracted land must not be disturbed.更多还原