【作者】 黄伟；

【导师】 马新彦；

【作者基本信息】 吉林大学 ， 法律， 2007， 硕士

【摘要】 本文以《物权法》的出台为契机,在对审判实践进行大量的长时间的调查研究和查阅大量文献资料的基础上,对当前土地承包经营权纠纷进行了分析和研究。并尝试着对农村土地承包经营权纠纷的防范和解决进行深入细致的思考和探索。全文从农村土地承包经营权纠纷的类型、成因、防范与解决四个部分,进行了系统全面的剖析,旨在透过现象看本质,用事实说话,用法律的语言说话,来试图解决现实社会中的热点难点问题。农村土地承包经营权纠纷的严酷现状一直以来是摆在司法实践面前的难题,而如何解题则是本文的主旨所在。通过全方位、多渠道、多层次的法律思维方式和大量的翔实的文献资料和调研数据,文章对农村土地承包经营权纠纷的防范与解决进行了有意义的尝试性探讨。我们也完全有理由相信有中国特色的农村土地承包经营权纠纷的防范与解决机制会日臻完善。更多还原

【Abstract】 Rural land contract system is a new system about land using and an important achievement of item reforming of our country rural area land since the Third Plenary Session of the 11th Central Committee of the Chinese Communist Party. It is the measure rural area land reform from one policy after for more than twenty years but rises to concrete legal system. The system was having provided sagaciousness one solving to our country land utilization problem solving right away from the beginning of its founding. While the constitution being amended in 1982, 1993 and 2004, it also looks on the person as an important content establishing fundamental one system in having perfected, having become ultimately our country land utilization system step by step in our country economic setup. It can be seen that land contract system develops to our country agricultural economy, the living standard of the peasants, the prosperity and stability of the rural area society. Practice has also testified it played an outstanding role in resolving the problem of three agricultures. The economic situation of our country has changed and some problems of this system manifest gradually. Rural area contractual right of land protection problem is an outstanding problem among those problems comparatively. As a result, making clear the rural area contractual right and designing a set of law relatively rational effective is temporarily. And that is also very significant to protect the benefit of the farmers, to drive our country rural economy to become market-oriented and to build new countries of the socialismIn the full text, there are about 20,000 characters, besides the foreword, the main body part has four parts.Part I , current contractual right of land dispute actual circumstances. Different according to the dispute main body , current land disputes is similar to mark for three: Wade across administration land contract dispute, wade across village land contract dispute and peasant individual between land contract dispute, among them wade across administration land contract dispute include reason land wander about contract main body indisposed lattice initiation dispute and face to face return the grain plots to forestry, attract investments, industrial estate compensation too low initiation dispute; Wade across the village land contract dispute includes: Organization at the grass-roots level contracts the dispute giving a village the people outside the collective or organizing initiation to the outside with belonging originally to some villages’s expedient , the land that the old-to-new term of office transition demands to relieve the land contract contract , dispute, and individual organization at the grass-roots level again, issuing contract of but initiating because of village committee meeting with the peasant wanders about being gathered the dispute that the sand produces by others; Between the individual, the land contract dispute includes a peasant: First , be contracted by in one’s refusal to do when land contract-issuing, because of part peasant, that the village committee meeting forces land to be assigned according to that regulation carries out land, and registering but, has been that the peasant gives cultivation other but in fact but , has produced a dispute from this afterwards, or under the name of the people who registers in cultivation, now the country carries out allowance on to contracting land , both sides produces a dispute, second, the peasant is anticipated mark other to the land increasing population newly by the village plowing, thirdly, Contract adjacent one side of field requiring that another one side returns to returning self all land back to belonging to plowing prior to, Land is wandered about under the situation that the land contract people says yes fourthly,having given economy compensation to another town, and from the latter. Only be a parol contract’s turn not to fulfill, land is forced to plow and already by the latter , person is demanded land contract now to return to being land’s turn, fifth, when that the village be shifted may divide a field since presumptuously, one side changes the boundary of a piece of land , arouses a dispute, require that the boundary fixes what be contracted by land again, sixth, the peasant is in offer for sale contract ground selling to contracting land take place by agreement to a building time the building being bought by person, later, land wanders about to third people , former land contract people demands to return to now to return land back. By the type summarizing the current land contract dispute,have analysed land contract system having problem in practice , have analysed for the later development going a step further to provide the real basis.Part II , contractual right of land dispute analysis of causes. In this part, from four aspect, to cause, problem makes analysis: First, organization at the grass-roots level behavior does not standardize. Less than being that part villages and towns government behavior does not standardize , the villages and towns government works, the place and part village cadre and villager are short of a legal sense. Secondly, initiate dispute because of land contract contract. Personnel replacement leads to namely the village committee meeting change or termination contracts a contract , gauge behavior breaking a contract or disobeying, and village committee meeting folk prescription termination of contract for the managerial right people contract a contract. Once again, current laws law and regulation block of wood improves and perfects. Here concentrates the deficiency having analysed the regulation appearing personally newly on land contract right problem , is that the contractual right of land owership attribute is ambiguous and protects a force insufficient and purchasing field compensation on a requisition basis yet mainly appropriate solve. Final, peasant the mentality that oneself is dependent on excessively to land and the rural area actual life effect. Embody the effect being that the peasant is dependent on the land mentality and the rural area society humanity environment excessively.Part III , contractual right of land dispute countermeasures. With problem, cause of formation brings forward the problem specifically for foregoing words from four aspect resolving a scheme: First , reinforce to land contract contract the gauge makes in advance. Concrete content is had , is makes land contract contract character clear , is reinforces the organizational building issuing contract of method and is reinforces the gauge system contracting field servitude to the peasant household wandering about. Secondly, reinforce rural area land contract management system. Be to reinforce the law knowledge training meeting a personnel to village committee including one,two is to strengthen the villages and towns government and the village shifts the procedure mental consciousness meeting a personnel, three are to reinforce the government departments attention to peculiar group , four are to reinforce to land contract according to law and the norm wandering about manages. Third, every branch and unit essential points each performs its own functions, right duty is clear. Demand: The grass-roots unit government needs to do a good job in mediating , relevance government departments wants to do the rural area land administration job with great efforts , to put a court into effect at the same time strictly not suing the principle disregarding. Fourth, improves a peasant and staff member of organization at the grass-roots level law consciousness and the contract realize. Embody in: The legal institutions first, reinforcing the relevant scholar field contracting laws and statutes, is propagated , is makes people more aware of the importance of law secondly, is strengthens contract mental consciousness once again. Suggestion is adjusted having many sides by all above , is is aimed at concrete conditions being allotted arrangement of ideas’s resolving the contractual right of land dispute.Part IV, has analysed the rural area contractual right of land dispute resolving machine-made perfect measure. Suggest that perfect grass-roots unit people mediates organization , bring whose characteristic resolving aspect flexibility , timeliness , concordance in dispute into play respectively from adjustment , arbitration and legal action three aspect analysis,; As soon as possible, build , perfect rural area land to arbitrate operating mechanism, improve a dispute efficiency , cost reduction solving, put free principle of contract into effect , respect contract both sides to the dispute convention regulation solving; Concentrate on being to resolve mechanism , include perfect legal action , make a people’s court clear resolving the contractual right of land dispute law basis , attach importance to effect in the law case mediating the dispute bringing rural area land contract to trial in the court , enter amendment as well as law and regulation is in progress to current laws by the fact that the judiciary makes an explanation.It is really a system engineering to resolve the rural area contractual right of land problem, considering law, economic, policy, society, culture and so on. This thesis analyses the causes of the problem on the basis of summarizing current situation from the law angle, points out the laciness of current laws in resulting it, and also suggests many ways complying with it. It is hoped that the thesis can provide some useful references for adjusting the land contract system systematically.更多还原