“三權分置”下宅基地集體所有權管理權能的構造與實現

The Construction and Implementation of Collective Ownership Management Power of Residential Land under the "Three Rights Separation"

改革開放以來的宅基地制度呈現出強化農戶宅基地用益物權，弱化農民集體所有權的態勢。在宅基地“三權分置”改革背景下，應當進一步強化宅基地所有權的管理權能。宅基地所有權的管理權能是落實和反映宅基地集體所有權本質屬性的應有權能，也是制衡其他主體有序利用宅基地的制度安排。宅基地集體所有權管理權能的雙重主體結構和複合構造有助於促進宅基地集體所有權管理權能的實現。宅基地集體所有權的管理權能可以細化為規劃、分配、決議、收回、監督等具體權能，並通過具體權能的行使落實宅基地集體所有權。

Since the reform and opening up, China has adopted a tilted institutional design that strengthens the self beneficial rights of farmers and weakens the collective management rights, resulting in many problems. In the context of the " separation of three rights" reform of homestead land, collective ownership of homestead land faces the risk of multiple erosion by the use rights of farmers and other social entities. The reform goal should be achieved by optimizing and improving the power and exercise mechanism of collective ownership of homestead land. The legislative system design and normative expression in the field of rural collective economic organizations and homestead management, which are actively being promoted, have strengthened the management power of collective ownership of homesteads. The management power of collective ownership of homestead land refers to the disposal arrangement made by the homestead owner for the occupation, use, income, and disposal of the homestead land. It can be refined into a series of specific powers, forming a multi-level and rich power system. The management power of collective ownership of homesteads is a reflection of the essence of collective ownership of homesteads, which is essentially a management power in private law. The management power of collective ownership of homesteads has multiple functions, such as overcoming the virtualization of collective ownership, implementing collective ownership of homesteads, and restraining other social entities from abusing their rights. The management right of collective ownership of homesteads can also directly constrain the usufructuary rights of farmers and the use rights of other subjects, bridge the drawbacks of the long chain of rights on homesteads, and thus help to form a balanced structure of the rights system on homesteads. The clear construction of the subject structure for the management of collective ownership of homesteads aims to solve the problem of the virtualization of collective ownership of homesteads by clarifying the ownership and exercise subjects of collective ownership of homesteads, and achieve the goal of implementing collective ownership of homesteads from the perspective of the subject. On the one hand, from the analysis of the external structure of the subject, the subject structure of collective ownership of homesteads presents a dual layer structure of ownership subject and exercise subject. On the other hand, from the analysis of the internal structure of the subject, a composite structure of "group member" is presented within the belonging subject and the exercising subject, respectively. Against the background of promoting the "separation of three rights" reform of rural residential land, from the analysis of the content of the collective ownership management rights of rural residential land, the management rights are mainly refined into specific contents such as planning, distribution, resolution, recovery, supervision, etc. These contents are the institutional arrangements for realizing the collective ownership management rights of rural residential land. The private law path to strengthen the management of collective ownership of homesteads is to clarify the essence of collective ownership management of homesteads and clarify the subject structure of management, and to fully confirm, empower, activate, and protect the rights, thereby shaping collective ownership of homesteads into private law rights with clear subjects, complete rights, sound exercise, and strong protection, ultimately promoting the achievement of the reform goal of "separation of three rights" of homesteads.