中国农村合作化运动及其解体 (The Collectivizationa and De-collectivization in Rural China)/周大勇

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Student:Dayong Zhou

dayong_77@hotmail.com


The Collectivizationa and De-collectivization in Rural China

周大勇 (Zhou,Dayong)

Abstract: the process of de-collectivization took place 25 years ago, however it was uncompleted, which determined that china has to make great effort to continue his rural reform, in order to liberate the peasant and the status of rural region as the Party promised. In China, the non-privatization reform occurred along with the de-collectivization was a uncompleted reform, which remains the defects of both collectivization and small-scale peasant economy, therefore it restricts the development of the rural society, however, the current system seems unable also reluctantly to change it. This paper intents to introduce the process of the collectivization and the most important rural reform in this century, namely the de-collectivization, the demonstrates the progression of de-collectivization, its characters as well as the problems left to be solve.
Keywords: collectivization De-collectivization collective ownership incomplete

Foreword
I am pleased that I am allowed to write the term paper about China. China was influenced by Marxism and walked in detour of history for half century. Before Marxism bankrupted in former Soviet Union and Eastern Europe countries, China had adopted a different way to reform from those countries. Because of the difference in aspects of historical evolution, political forms and natural environment, it’s hard to compare the rural society of China with these former socialism countries directly, also, the progression of collectivization and its end are different in two continents.
Rural china before collectivization
Collectivization was a mark system of the socialist state. Although in the era of Utopian socialism, Robert Owen for example has already attempted to set up the collective farm, but it wasn’t pursued by force strength of government. Even the founder of communism Marx didn’t agree that communism could be realized in undeveloped countries with extremely poor productivity . It was Russia, the serf country, in which Communist took power without adequate preparation; collectivization was implemented by force, in order to consolidate the rule in grass-root countryside. This experience has influenced China and Eastern Europe, because one of the merits of the collectivization lies in being easy to be managed, the other lies in being easy to deprive peasants.
China was a backward country, which suffered from ignorance and war for centuries. Throughout the centuries some 80 to 90 percent of the Chinese population were farmers and live in one of some 900,000 villages, which have an average population of from 1,000 to 2,000 people. Villages were not self-contained, self-sufficient units. Clusters of villages centered on small market towns, which linked them to the wider economy and society by providing not only opportunities to buy and sell but also opportunities for entertainment, information, social life, and a host of specialized services. The traditional Chinese elite, often referred to in English as the gentry dispersed across the country and often lived in rural areas, where they were the dominant figures on the local scene, normally ruled villages. Although they held land, which they rented to tenant farmers, they neither possessed large estates like European nobles nor held hereditary titles. However, they traditionally interpreted central policies and national values for villagers. As in feudal relationship, the peasants and gentry live depend on each other. Gentry provided land to poor peasants and tenant, and work with rich and middle peasants to secure the order in village, for instance opening school and building basic infrastructures to maintain there social status. In Chinese history, at the beginning of very dynasty, the land relationship between landlord and poor peasants were comparably fair, that meant, peasant have parcel farmland to live on. But land tended to be concentrated on end every dynasty, then there might be a peasant uprising led to a new dynasty and retribution of land. This is the basic clue of social evolution in China before communist period.
After the Chinese Communist Party came into power in mainland, it had to keep its promise, which it made during the period of war to encourage the peasant to join the army, that it would gave peasant their own land. The first major action took place from 1940s to early 1950s. June 1950, a new Land Reform Law of new People’s Republic was promulgated and stipulated nullification of the feudal land ownership system, and institutionalization of the system of land ownership by peasants, in which the Party sent agents to every village to carry out the land reform policy. This in itself was an unprecedented show of political power and the resolution of transform an old society. The reform was successful, because the peasants supported the policy; most of them had been waiting for the reform for long time. In the light of the reform law, land were redistribute from the landlords, land-owning trusts or wealthier families to the poor segments in the same village; village elites, who might be expected to go up against the Party and its programs were brought down; new leadership was established by poor peasants who showed the most loyalty to the party's goals; instead of kinship group or patron-client ties, class status became new relationship among villagers.
the process of Collectivization
However, the Party’s leaders were not satisfied with the privatization of land, at one hand, such ownership, according to the doctrine of socialism, should have been abolished in the state of socialism, at another hand, private ownership of small peasantry had no function of property accumulation for the country. At that time, in order to accelerate the construction of socialism, China had launched The First Five-Year Plan after the Soviet model; heavy industry development was profound stressed since the leaders of Communist Party regard socialist country as a country with developed industry sectors. However, the situation in early 1950s was not ideal for a new country. Pressing of needs for food in a country with burgeoning population, domestic capital for investment, and purchase of Soviet-supplied technology, capital equipment, and military hardware. To satisfy these needs, collectivize agriculture was put forward. Collectivization was regard as a method to turn countryside to stabile backing, which can be managed as semi-military and had rare contact with outside, so that the government could press the price of agricultural products by means of scissors difference between cities and countryside, and seize huge numbers of profit from agriculture economies to support the industrialization in city. At the same time, the government had already nationalized banking, industry, and even trade. Private enterprise was already virtually abolished in national wide.
Despite internal disagreement as to the speed of collectivization, preliminary collectivization was launched since 1952. China's peasantry saw Chairman Mao and the Communist Party as heroic much more than Russia's peasantry had seen Stalin and the Bolsheviks as heroes, and through 1956 the peasantry cooperated with the Party. There was none of the resistance and warfare that had accompanied the collectivization of agriculture in the Soviet Union.
The collectivization of agriculture was basically completed with the establishment of the people's communes in 1958. The People’s Commune system was defined as a unity of politics and production, in which all members of the commune jointly owned property. Essentially, the commune system was based on private contract of its members and the principle of voluntaries and mutual benefit, however, it turned out yet as coercive institutional arrangement, which was made by government with political power. In the movement to achieve the People’ s Commune, peasants had no choice whether or not to join.
Communes were designed as large, embracing scores of villages created by combining some 20 or 30 advanced producers' cooperatives of 20,000 to 30,000 members on average, in some cases the membership varied from as few as 6,000 to over 40,000. It was instituted as an organization with functions of the lowest level of local government and the highest level of organization in agricultural production. Communes consisted of three organizational levels: the central commune administration; the production brigade , and the production team, which generally consisted of around thirty families. This kind of institution was an organization of hierarchies, in which the commune acted as political unit and top manager, the brigades played role of co-coordinators between the commune and the basic production teams. The production team was basic units of production and accounting. Since the people’s commune system was a tool established to extract resources from agriculture sector for industrialization, as a result, it neglected peasants’ incentive completely. In order to let the people’s commune system run, the central government designed an relative effective mechanism to encourage managers in each hierarchy to work enthusiastically, yet, in each level, the managers were treated differently and there was a clear difference in aspects of identity and welfare between the managers of the commune and of the brigades or production teams.
The commune was defined as administrative organ and executed the central government’s orders, and paid from central government’s budget, therefore the managers in the level of commune were “state cadres” , that means they were formal governmental officials and got wage monthly. These state cadres could be promoted and became officials of governmental divisions in higher level. Brigades and production teams were collective economic organizations, their running expenses came from production teams’ tribute. Managers in brigades level were called “collective cadres” . They were remunerated in their own production teams according to their labor quotas. Their wage was paid in the form of products instead of money. Managers in production teams were“team cadres”, they were also members of the production team. They worked as peasant like their workmates, and were paid in products according to labor quotas. Team cadres could be promoted to collective cadres. Collective and team cadres had little possibilities to be promoted and became members of state cadres. Nevertheless, as collective and team cadres had some privileges. For example, collective managers had the power of assigning state’s delivery quotas and production tasks among production teams, they determined who could enrolled in state-owned factories, universities and army. The production team managers executed the power of assigning work and distributing products among collective members. Furthermore, in the period of many political movements and class struggles, the identity of cadre could protect their families, relatives and themselves from being denounced and bullied (Tan, 1999).
At beginning, the commune itself was decorated as the representation of socialist society and had all merits of public ownership. Although nearly all the private property had been deprived, peasants had to praise the new system profusely. it was true, most poor peasants found that their lives changed, by eating in the public dining they didn’t need to worry about their own budget anymore, and by working together, they were not necessary to try their best. Following propaganda appeared in newspapers everyday:
The public dining halls are distributed in a way that members need walk only a few minutes from their homes to take their meals. On the freshly whitewashed walls of the one on Shihfuchien Street, a typical establishment, there is a big slogan in red, which reads, "High Spirits for Higher Production!" Its kitchen, to which the visitor is drawn by the aroma of food and the clatter of pots, is managed by Tu Hsiu-chen, the first volunteer cook, who has since learned large-scale catering from the chef at one of the city's restaurants.
The walls of the spacious dining room are decorated with paintings, as a home might be. Its tables and chairs, though simple, are scrubbed to a shining cleanliness. The food is fresh and tasty -- vegetables are grown by the commune itself. The staff make a special point of studying the diet and preferences of old people, children, nursing mothers and members with ailments. There is a separate room for parents with small children, provided with low tables for the little ones.( People’s Daily, 1958)
However, in practice, this ideal, extremely centralized form commune didn’t keep running well in most areas. Very soon it became clear that in most cases the communes were too clumsy to carry out successfully all the managerial and administrative functions that were assigned to them. The cooperative led to low-efficiency, the advantages of large-scale productivity didn’t arrive as peasants anticipated, productivity began to drop and discontent emerged. The reason lies in insufficient utilization of resources and lack of incentive of peasants. At one hand, the output of cooperation comes from all members’ work, in which the tribute of single household is difficult to be measured. So that opportunism like shirking happened naturally very frequently. An effective way to prevent shirking is to have all members supervised, but the seasonal work and spatial diversity of agricultural productive activities make it difficult to totally supervise. At the other hand, although brigade and production team cadres were obliged to complete state’s planning and all kinds of deliveries, the control right and residual claim of the people’s commune system were in the state’s hand, these cadres at grass-level could not design any reasonable incentive mechanism to encourage peasants to work hard and produce according to reasonable natural condition, such as soil, irrigation and farm year. The way left for brigade and team cadres was to punish peasants by struggling against them or maltreatment. But the brigade and team cadres also belonged to members of production teams, they and their families lived in the same community with their subordinates as well, so punishing peasants could also make themselves in trouble. Moreover, under the property rights structure of the commune system, the rest of output was not belong to the commune, brigade or even production team, but to the governments of higher level. This made the supervisors’ effort unrelated to any reward. As a result, even the supervisor himself has not enough incentive to work and shirk himself sometimes. In a word, under such conditions of poor supervision, in which all the work was distributed equally among all members at the lowest level--production team, shirking became every member’s rational choice and further weakening the efficiency of the system (Lin,1990).
De-collectivization
To prevent peasants from slow down, shrinking and escaping in work, and assure the system could keep on moving, the party collected all productive equipments and forbid members in people’s commune engaging in private production and business on the one hand, and at same time deprived peasants’ right of migrating from countryside to city or between districts by means of household registration on the other hand. Nevertheless, such policies had no effect on improving incentive of peasants, but they formed at least political press on very member of people’s commune, because it turned out that everyone’s only routine is to stay in the commune and finish one’s task. Without the right to leave or get better than others, peasants commonly chose to work with little effort, e.g. a passive method, to evade production tasks assigned by leader. Little accumulation and shirking made countryside widely fall into poverty , rare rural region had good conditions to develop industry or to improve commerce, infrastructures went worse, productivity sank quickly. The most serious crisis for agricultural collectivization happened between 1959 and 1961. GNP decreased from 213.8 billion Yuan in 1958 to 180.0 billion Yuan in 1962, with an average annual reduction of 15.1% in gross industrial production value and an average annual reduction of 19.3% in gross agricultural production value from 1958 to 1960. Owing to the serious shortage of food, a great famine took place in the whole country and at least 30 million residents died (Tan, 2000). Discontent with such system broke out, in some areas, peasants didn’t want to relied so heavily on orders from above and made so little allowance for local conditions or local initiative. The severe crisis forced the Party to adjust their policies. From 1961 on, commune functions were reduced to administration and co-ordination, production team was confirmed as the basic unit of accounting, certain production decision making was delegated to production teams, which were allowed to retain some income to overcome problems of egalitarianism; households again allowed to have small private plots and sidelines for planting vegetables, and a limited opening markets for transaction between urban and rural areas. However, these adjustments didn’t mean to change the system of people’s commune, but only to prevent peasants from rebel. From 1966 to 1976 China suffered the disaster of Cultural Revolution , there were large institutional swings took place in this period, in which co-operative moved from small to large and from team to brigade to commune again, local free markets, sidelines and private plots was prohibited again, and political factors had a great influence on production decisions.
In late 1970s, after the Leader Chairman Mao passed away, the requirement for improving agricultural productivity came alive. Administrators in provincial-level units with extensive regions of low yields and consequent low standards of living began experimenting with new forms of tenure and production. To avoid frontal conflicts of wide scope with government’s policies and the main ideology, a gradual approach was adopted. The first step of reform was to divide the production team into groups and to fix yield quotas for each group. Each group signed a contract with production team, the contractual items included the conditions of using land, laborers, farm tools and draft animals, the expenditure, labor contribution, rewards for excessive labor contribution and so on. After completing the tasks assigned by the production team, the output could be distributed among work groups according to their labor quotas. And then, the further solution was put forward, namely the typical form of fixing quotas called “all-round contract”, which was initiated by a few brave peasant secretly in Fengyang county of Anhui province. this contract regulated, household was allowed to cultivated a certain parcel farmland in the group, if grain quotas assigned by the state and the collective accumulation were accomplished, the household could own all the residual output. In the light of the contract, peasants were given directly stimulation to produce. The experiment was deemed successful and popular, and it soon spread to all districts.
At another side, political situation was appropriate with the reform form below. In the Eleventh National Party Congress, held August 12- 18, 1977 proclaimed the formal end of the Cultural Revolution, blamed it entirely on the Gang of Four , and reiterated that "the fundamental task of the party in the new historical period is to build China into a modern, powerful socialist country by the end of the twentieth century." The reformer Deng Xiaoping was elected as vice chairman and back to political stage and suggested a series of reform plans, though many contradictions still were apparent, change of policy was regarded as necessary. Rehabilitations of Deng's associates and others sympathetic to these reform plans were stepped up. Not only were some of those purged during the Cultural Revolution returned to power, but also individuals who had fallen from favor as early as the mid-1950s were rehabilitated. It was a time of increased political activism.
In November 1980, the Central Committee of Communist Party of China issued the document Some Issues of Further Reinforcing and Improving the Responsibility System in Agricultural Production. This article manifest the first time that the Party accepted the production responsibility systems developing in practice. In the document fixed output quotas of farmland for each group and responsibility contracts in some specialized obligations were indicated, at the same time, the fixed output quotas for household was also regarded as positive. Under the encouragement of government’s policy and related support measures, plenty of production responsibility systems developed very rapidly in rural areas. In 1981, a wide deeper reform called fixing the contribute quote for each household (bao gan dao hu), which was much more radical, was implemented. In accordance to the system, all collective lands in production teams were to be distributed among households based on their population or laborers. The households could manage the lands, made production decisions by themselves, and bore the results. When tasks assigned by upper government and the collective accumulation, e.g. a certain quantity of grain and livestock, were completed, the remained products could be owned by the households and not distributed among members in the production team. Moreover, if the household made sure that they have enough ration, they had right to sell the left grain to state owned agricultural enterprises or consume them as they want, usually feeding livestock or making wine for example. That meant the model from Fengyang was finally admitted by Party. In October 1983, the Party and the State Counsel issued the document Notice of Separating the Co-operative from Politics and Setting Up the Township Government and required the cooperative to separate from local government. The act ordered that the people's communes were replaced by administrative townships. By the end of 1984, 98% of production teams had taken the reform of Household Responsibility System. It was until then, the collectivization system was dismantled completely.
Some Characters of De-collectivization and Problems left
No restitution
Yet, de-collectivization and the implement of the household responsibility system is neither a reform of the ownership of land nor a process of privatization. As we have mentioned above, after the Communist Party set up its own government in 1949, it started land reform and distributed lands to the poor from landlords and rich peasants. Peasant acquired parcels of land according to the labor forces, then land were registered under name of each household. Before the eve of collectivization, most of lands in rural China were legally privately owned. But when de-collectivization began, peasants did not get back their former lands again. The household responsibility system only distribute the right of manage and benefit of lands among households according to their population or laborers. So, the de-collectivization in China did not like that in most of East European countries such as Bulgaria, Czech, Hungary, Poland, Romania and Slovakia, but like that in Albania. That is to say, there was no restitution of land. However, in former East European Countries, whether restitution was implemented or not, the de-collectivization had symbiosis with privatization. In China, although during the process of de-collectivization there were in reality some opinions that lands should be restituted, such voices were not accepted, nor even discussed.
The reasons why restitution of land in the de-collectivization of rural China did not happen may lie in some historic reasons. First of all, although peasants in China had private ownership over lands before the collectivization, large percent of peasants owned farmlands that did not belong to them before, they obtain them from political transformation. Theoretically, violence can’t consist the legal reason of transfer of ownership over real estate, therefore even after the terrorize during the land reform at beginning of 1950s, the private ownership of lands, which was made out by the communist government, had not yet became stable and commonly accepted. However, the former landlord class had rooted off during the political movement, land contacts and register books of land title had been destroyed, no one dare to challenge the power of Communist Party anymore. Since the collectivization began soon after the land reform, the new established owner relationship was broken again, when de-collectivization came about, without supports from the central government, most of peasants only took the household responsibility system as another chance of equally distributing lands, just like the land reform in 1949. As to descendants of former landlord class, they might have not forgotten the experience of their poor ancestors’: claiming private right before the Party which regarding public ownership as universal truth is a dangerous deal.
Secondly, different from most country in former communist east European countries , in which farmers’ nominal ownership of lands was remained, even though their lands were requisitioned in collective farms without any payment, and so that it was easy for peasants in these countries to take back the land when the collective farms went over. On the contrary, in China, private ownership of land was totally abolished as soon as the people’s commune system was set up, after 20 years, the collective ownership had already fest basis. As a result, the transaction costs of restitution so high as to wipe it out. That means, even a peasant want to take back the former farmland which belonged to them, it’s very hard to him to collect the relevant evidences to support his claim, moreover, there was no legal justice process to support such application. So normal farmer would rather to accept the Household Responsibility System.
Finally, the key reason lies in the socialism system itself. Even though the Communist Party of had poor performance in leading the country and its people to wealth and happiness during socialist revolution, Chinese people have taken socialism as the characteristic of the country for grant, after all the slogan “ Socialism saved China” has been deeply impressed. So that even after the Culture Revolution, most people still propped up the Party. The Party led the rural reform and decided the de-collectivization. However, the reform is a “liberation of the rural productivity”, which suit the requirement of the Party. Because the Chinese Communist Party insisted that his mission is to realize socialism, and socialism is based on public ownership system. Collective ownership was deemed as one form of public ownership in rural regions, so that as China kept on the road of realizing socialism, “land in rural areas belong to collective” was certainly remained after rural reform, and regulated in the Constitution of 1982, which is valid till now.
At the time of de-collectivization, the dissolution of people’s commune and the wide implement of responsibility system were regard as a great innovation. According to the statistic, The Household Responsibility System did bring about a more prosperous agriculture in China. From 1978 to 1984, grain output in China increased at an annual average rate of 5% and the gross value of agriculture by 7.7% (Lin, 1997). In contrast with former European countries, the de-collectivization seems bring more benefit to Chinese peasants at beginning. So that at that time, rare peasant did realize that such a reform without transformation of ownership was incompletely. However, The natural shortcomings of the de-collectivization would surely bring a series of problems.
institutional problem: land distribution
As we showed above, the de-collectivization ran smoothly and the introduction of Household Responsibility System has got a great success, although it could not address everything as only an institutional innovation. After several years of practice, it has been already proved that there are a number of weaknesses and limitations remained from the incompletely de-collectivization. One has to confirm, that the collective ownership and contract system led to the inequity in both economic and political features.
In economic view, during the de-collectivization, farmland was distributed to individual households in form of fragmented farming units. The principle of land distribution was derived directly from collective ownership. Farmland in a village was owned by all of its members collectively. As a result, every member had equal right to claim on distribution of the land according to certain norm, which was based primarily on the size of the peasant family. In reality of China with abundant population and limited land, the amount can be distributed to each household was very small. Moreover, land differed from each other in terms of soil fertility, irrigation conditions, location and so on. In many cases, a household had to obtain pieces of land from each of the grades. as a result, the sum was not only insufficient but also disjointed and scattered around villages. Large areas of cultivated land were wasted in the form of paths and boundaries separating households' contract field. A survey conducted by the Chinese Ministry of Agriculture indicated that in 1986, among 7983 sample villages from 29 provinces, average cultivated area per household was 0.466 ha (7 mu) fragmented into 5.85 plots, each plot on average 0.08 ha (1.2 mu) (Ministry of Agriculture of China, 1993) . This fragmented structure of family farming has remained largely untouched after implement of contract system and has detained the possibilities of using relatively advanced mechanical agricultural equipment and infrastructures.
Under such system, farmers turned to be short-term in action. According to the distribute rule of land in household responsibility system, land is to distribute depended only on villager status, babies and villagers' new-comer such as newly married bride from other villages were all eligible claimants, which having equal rights to share equal amounts of land in this village; on the contrary, when a villager left or died, the right of land claim would automatically withdraw. As population increased, villages had to readjust the distribution structure, which further subdivided the farmland . The endless redistribution of farmland resulted in many problems, including: 1) the situation of a small and fragmented farming structure further deteriorated; 2) worrying about the risk of losing their land as well as investment, farmers had little incentives to improve land conservation and agricultural infrastructure - irrigated land, one of the most significant components of agricultural infrastructure in China, remained almost unchanged during the 1980s; 3) farmers over-exploited the soil to pursue short-term profits; 4) the course of land redistribution was also costly, it required labor and time in organization and execution. (Chen, 1999)
Another problem is that farmland was generally badly endowed with the appropriate human capital. Since egalitarianism was the general leading principle rule, which gave little consideration to interfamily differences such as labor capability, education and individual preference . As a result, some large households with a incomplete labor force could have comparably much more land to cultivate, meanwhile other smaller households, above all those specialized in agriculture, could have only inadequate land for full employment. Such kind of problem was much worse in rural areas experiencing rapid township or village industry and urbanization. In those region there was often deterioration in the agricultural labor force since most of capable labors tended not to work at home as a farmer. There were many who did not give priority to cultivation and at times even let the land lie unused. Consequently, the farmland was underutilized .
Upon preceding analyzing, we can see that, in order to pursue egalitarianism on surface in distribution of land, in the process of the de-collectivization sacrificed economic efficiency. Thus, if the land was private, then those difference arouse from distribution will decease after enough time, because the free market will lead to equal efficiency through the choose of market. However, such political background lacked from beginning on, so that the shortcoming of a non-privatization de-collectivization can’t be corrected or even be enlarged because of problem of political system.
One of the main reason is political structure over the collective ownership. First at grass-root level, it was usually the village head, who takes the power to decide distribution since decentralization. So that the cadre family or their relations will surely benefit from the distribution. Having a cadre in the family seems to be a certain prerogative in using their political status to accumulate wealth. At one hand, Village cadres may allocate more fertile parts of the village land to themselves and determined more favorable grain sales quotas for themselves. And also, cadres have more opportunity to build personal relationship with higher level and other important departments, rural credit banks or transportation companies for example, so that they have more chance to obtain material benefit than normal peasants. As we see, most of collective enterprises and private economies in rural areas have tight relationship with local governments, at the basic level, with villager cadres, most rural enterprisers are villager leader themselves. Furthermore, cadres and their relations generally tend to break the policy of birth control, because they are capable to support more family members, and their kin will strengthen their economic and political power in return.
At another hand, though according to the election regulation of rural cadre in china, these village cadre should be elected directly by villagers, who have common interest in the community, this rule has been almost never put into practice. Under one Party system and public ownership system, all important resources are gathered in the Party’s hand, as a result, instead of election, the opinion from higher level plays a significant role, in order to carry ort the policy of Party efficiently. In fact, two factors determine the candidates in appointment of village head, one is the relationship with official of higher level, and the other is kinship. Consequently, cadre family takes all advantages to maintain their power and status through such appointment. So, cadres in rural China don’t represent the benefit of their village members, but the power of the Party as well as the family, there is no possibility for peasants to claim equality or save their from suffering as a peasant.
In a word, after a short flourish in rural China, which came along with the de-collectivization and the implement of Household Responsibility System, most peasants have to face the irrational occupation and distribution system of farmland and the political system, which is impossible to change. Besides there was strict limitation prevent peasants from abandoning their responsible land and rushing into cities, so that the peasants found it is hard to change their situation or turn it more better and free. This may explain why in rural china exists always the tendency of over population but the income of household began to decrease only after less than 10 years from the de-collectivization. As a result, land reform in China has emerged as a difficult issue in rural areas of exchange between social equality and economic efficiency. It seems obvious that since the mid-1980s the wide rural society has been caught in this predicament: where social equality or equity worsened, and at same time economic efficiency held back.. According to statistics, average net income in countryside has been slowed down for years. In 2000, the household average income only reached 272 dollars, but the Gini coefficient in China base in urban and rural areas rose from 0.21 in 1978 to more than 0. 46.
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国务院关于同意广西壮族自治区调整南宁市部分行政区划的批复

国务院


国务院关于同意广西壮族自治区调整南宁市部分行政区划的批复

(2004年9月15日国务院文件国函[2004]79号发布 自发布之日起施行)



广西壮族自治区人民政府:

  你区《关于调整南宁市部分市辖县区行政区划的请示》(桂政报[2004]3号)收悉。现批复如下:

一、同意撤销南宁市城北区、永新区和邕宁县,设立南宁市西乡塘区、良庆区、邕宁区。

二、将原邕宁县的四塘、五塘、昆仑3个镇划归兴宁区管辖,兴宁区人民政府驻厢竹大道。

三、新城区更名为青秀区,将原邕宁县的长塘、伶俐、刘圩、南阳4个镇和蒲庙镇的莫村划归青秀区管辖,青秀区人民政府驻仙葫大道。

四、将原邕宁县的吴圩、苏圩、延安3个镇和原永新区江西镇的同新、同华、锦江、安平、同良、同宁、同江、那廊、智信、扬美10个村划归江南区管辖,江南区人民政府驻壮锦大道。

五、将原永新区和城北区(不含原永新区江西镇的同新等10个村)划归西乡塘区管辖,西乡塘区人民政府驻大学路。

六、将原邕宁县的良庆、那马、那陈、大塘、南晓5个镇划归良庆区管辖,良庆区人民政府驻良庆镇。

七、将原邕宁县的蒲庙(不含莫村)、新江、那楼、镇龙、百济、中和6个乡镇划归邕宁区管辖,邕宁区人民政府驻蒲庙镇。

  上述行政区划调整涉及的各类机构要按照“精简、统一、效能”的原则设置,所需人员编制和经费由你区自行解决。行政区划调整涉及的行政区域界线,要按照有关规定及时勘定。


浅析动产善意取得的构成要件

徐英杰 姚秀金


审判实践中经常会出现这样的案例:在动产所有权人没有授权情况下,动产的占有人将该动产转让于第三人,第三人取得对该动产的占有,可能用于自已的消费,可能再行转让。例如:某甲从某乙处借得一台电视机,后出卖于第三人某丙,某丙认为电视机既然由某甲占用,故也自然属于某甲之物,遂与其完成交易,某甲也就将该电视机交付于某丙。那么,第三人是否取得所有权?在何种情况下属于善意取得?在这方面,我国民事立法尚存盲区。对类似案件的审理,由于认识不同,案件处理结果可能完全相反,这不仅影响案件的正确处理,更有失法律的尊严。在此,笔者根据我国《民法通则》的基本原则和有关司法解释,结合审判实践经验,浅谈自已的意见。
一、动产善意取得的概述。
(一) 善意取得的含义。
善意取得制度是物权法中的一项重要制度,关于善意取得制度的适用范围,主要有两种观点:一种认为善意取得制度仅适用于动产;另一种认为善意取得既可适用于动产亦可适用于不动产。从理论渊源上看,善意取得制度仅适用于动产;但从价值基础和理论基础上看,善意取得制度适用于不动产亦无不可。动产善意取得,是指无权处分他人动产的让与人将其有权占有的他人的动产交付于买受人,如买受人取得该动产时系出于善意,则取得该动产的所有权,原动产所有权人不得要求受让人返还原物。不动产善意取得,受让人信赖登记证书而与无权处分不动产的让与人交易,如受让人取得该不动产时系出于善意,则取得该不动产的所有权,原不动产所有权人不得要求受让人返还原物。
按照法律的一般规则,只有所有权人或受人之托、代他人处分的人才有处分财产的权利,无处分权的人处分他人之物,属于一种侵权行为,其所为的法律行为须于事后取得其权利或经该他人之承认,始生效力,而且,所有权具有追及性,可直接向买受人追回原物。但善意取得制度的意义在于阻却所有权人的追及,允许善意的买受人取得受让物的所有权,保护让与人与受让人之间已经完成的交易,这在一定程度上侵害了所有权人的利益。法律为何会作出这样的抉择呢?这就涉及到善意取得制度的价值基础、理论基础、理论渊源。
(二)善意取得之价值基础。
善意取得制度,为近代以来大陆法系与英美法系民法一项重要法律制度。其涉及民法财产所有权的静的安全与财产交易的动的安全之保护问题。保护静的安全即是对所有权给予绝对的保护,保护财产交易的动的安全即是对财产流转的保护。善意取得制度本质上是平衡所有权人利益和善意受让人利益的一项制度,一方面旨在一定程度维护所有权人的利益,保证所有权安全,保持社会秩序的平和稳定,另一方面又侧重维护善意受让人的利益,促进交易便捷和保护交易安全。当在保护真正的权利人与保护善意受让人之间发生冲突时,应当侧重于保护善意受让人。这样不仅有利于维护交易的安全,而且有利于鼓励交易;保护善意的受让人将使受让人形成一种对交易的合法性 、对受让的标的物的不可追夺性的信赖与期待,这就对当事人从事交易形成了一种激励机制,使其对交易产生安全感,并能大胆地从事交易。保护善意的受让人将有利于建立一种真正的信用经济,并使权利的让渡能够顺利的、有秩序的进行。在此种情况下,对真正权利人的利益的限制,亦含有把真正权利人选任托付自己财产的当事人考虑不周的责任归咎于他,他自己也应当承担不当选择的不利后果的意思。
在市场经济条件下,若要求每一个进入市场进行交易的民事主体,都对财产的来源情况进行详细考察,无疑会滞缓交易进程,影响社会经济效益,不利于信用经济的建立,也会从根本上破坏市场经济的存在基础。在市场经济条件下,交易日益频繁、交易过程纷繁复杂,且交易越来越需要迅速快捷,因此不可能要求交易当事人在从事交易之前,花费许多时间和精力去调查了解标的物的权利及变动状态,了解交易的对方是否有权作出处分,否则不仅会使交易难以迅速达成而且也会防碍交易的正常进行。善意取得制度适应我国当前发展社会主义市场经济的需要,应确立为民法典中的一项重要制度。
(三)善意取得的理论基础。
就实质来看,善意取得制度,是一种以牺牲财产的静的安全为代价而保护财产的动的安全的制度。法律为何要牺牲财产的静的安全以保护财产的动的安全呢?这便涉及到善意取得存在的理论基础的问题。关于善意取得存在的理论基础问题,许多学者从不同的角度提出了不同的看法,大致有以下观点:(1)取得时效说。时效制度,以时间及时间之经过为其构成要素,而善意取得制度则与时间及时间之经过没有联系,所以,时效制度与善意取得制度是两种各自独立的制度。(2)权利外形说。占有人应推定其为法律上的所有者,故受让人有信赖之基础。(3)法律赋权说。善意取得是由于法律赋予占有人处分他人所有权的权能。(4)占有效力说。善意取得系由于受让人受让占有后,占有之效力使然。大多数学者认为善意取得制度的理论基础是法律上承认占有公信力的逻辑结果,即赞成权利外形说。
善意取得是所有权取得的一种方式,所有权属于物权,物权是一种对世权,物权对世人的对抗是以对方知情为前提的。因此,物权必须具有向世人公开的手段,这就是占有和登记。动产物权的公示方法为占有;不动产物权的公示方法为登记。物权的变动以占有和登记为公示方法,当事人如果信赖这种公示而为一定的行为,即使占有和登记所表现的物权状态与真实的物权状态不相符合,也不能影响物权变动的效力。占有仅对动产具有公信力,即动产的占有人即被推定为所有权人。第三人正是基于占有来判断无处分权人是所有人,因此信任他应有处分权而为交易行为的。受让人信任的基础是占有的公信力。对于不动产,只有登记证书才能表征所有权,标的物的转移占有并不移转所有权,只有经登记取得证书后才发生所有权移转的效力,但是,不动产交易也会因登记错误、疏漏、未登记等原因发生无权处分问题,若不动产交易中第三人取得不动产时出于善意,从保护善意第三人、维护交易秩序的目的出发,应当允许第三人获得不动产的所有权。
(四)善意取得制度的理论渊源。
一般认为,善意取得制度是近代以来以日耳曼法的制度设计为基础,又吸纳了罗马法上取得时效制度中的善意要件,从而得以产生发展起来的。
在古代,调整无权转让关系的法律有两种不同的立法原则,即罗马法的“任何人不得将大于其所有的权利让与他人”的原则;日耳曼法的基于“以手护手”观念,采纳的“所有人任意让他人占有其物的,只能请求该他人返还”的原则。罗马法的原则侧重对所有权人的保护,日耳曼法的原则侧重对受让人利益的保护。罗马法不承认善意取得制度,即使受让人为善意,所有权人也可对其主张所有物返还请求权。但罗马法并非完全无视受让人的利益,而是规定善意受让人可主张时效取得。日耳曼法认为一旦权利人将自己的财产让与他人占有,只能向占有人请求返还占有物,如占有人将财产移转给第三人时,权利人不得向第三人主张所有物返还请求权,而只能向转让人请求赔偿损失。善意取得制度虽源于日耳曼法“以手护手”的原则,但二者在制度设计上仍存在差异。日耳曼法“以手护手”原则采取的是限制所有权追及力之结构,而且适用时根本无须区分受让人为善意还是恶意;善意取得制度采取的是使受让人取得所有权之结构,其目的在于积极地使受让人取得所有权,而非仅仅消极的限制原所有权人之恢复请求权。
善意取得制度之所以源于日耳曼法,是因为在日耳曼法上占有与所有权并未严格区分,占有其物者即有权利,而对物享有权利的也必须占有物,因而受让物的占有者,可能取得权利,而有权利但却未直接占有其物时,其权利的效力也因之减弱。当动产所有权人以自己的意思,将动产托付于他人而由他人直接占有时,所有权人权利的效力减弱,一旦直接占有人将动产让与第三人,所有人就无从对该第三人请求返还。善意取得制度之所以不能追溯到罗马法,是因为在罗马法上所有权概念出现较早,占有和所有权是两个相互独立的概念,所以无法演绎出以受让人误信物的占有人为有处分权人为适用前提的善意取得制度。
二、动产善意取得的构成要件。
在我国将要建立的有中国特色的社会主义的民法体系中,应将善意取得制度规定如下构成要件:
(一)受让人须为善意。
善意取得中的“善意”系指行为人在为某种民事行为时不知存在某种足以影响该行为法律效力的因素的一种心理状态。由于善意只是受让人取得财产时的一种心理状态,这种状况很难为局外人得知,因此,确定受让人是否具有善意,应考虑当事人从事交易时的客观情况。如果根据受让财产的性质、有偿或无偿、价格的高低、让与人的状况以及受让人的经验等可以知道转让人无权转让,则不能认为受让人具有善意。受让人在让与人交付财产时必须是善意的,至于以后是否为善意,并不影响其取得所有权。如果受让人在让与人交付财产以前具有恶意,则可以推定其接受财产时为恶意。
(二)受让人须通过有偿的法律行为而取得所有权。
善意取得制度是为保护交易安全而设定的,只有在让与人和受让人之间存在交易行为时,法律才有保护的必要;适用善意取得制度,除要求交易行为中让与人无处分权外,必须具备法律行为的其他一切生效要件,如该交易行为本身无效或可撤销,则不能发生善意取得。
善意取得制度的适用还应以受让人有偿取得动产为前提。若无偿转让动产,在许多情况下,本身就表明该动产的来源可能是不正当的,此时一个善意的受让人是不应受让这样的动产的;同时,受让人返还这样的动产并不会给其造成大的损失,受让人应返还该动产。
(三)受让人须实际占有由让与人转移占有的动产。
所谓动产占有之转移,包括四种情形:现实交付,简易交付,占有改定,返还请求权之让与。现实交付,即直接占有的转移。简易交付,即受让人已经占有动产,则于物权变动的合意成立时,视为交付。占有改定,即动产物权的让与人与受让人之间特别约定,标的物仍然由出让人继续占有,这样,在物权让与的合意成立时,视为交付,受让人取得间接占有。返还请求权让与,即动产由第三人占有时,出让人将其对第三人的返还请求权让与受让人,以代替交付。在现实交付及简易交付场合,因受让人都已直接占有动产,其可基于善意取得制度取得动产权利,自无疑义。在让与人与受让人之间依占有改定方式进行交易时,基于上述善意取得之价值基础的考虑,不宜支持占有改定方式下的受让人取得所有权。可见,只有当受让人实际占有该动产时,才适用善意取得。
(四)客体物须为(以交付为物权的公示方法的)动产。
动产,是指能够移动而不损害其价值或用途的物。动产的公示以占有为原则,登记为例外。以登记为公示原则的动产,如航空器、船舶等,适用不动产善意取得制度的规定。
自近代以来,物被区分为占有委托物与占有脱离物,这通常是各国建立善意取得制度的前提。占有委托物,指基于租赁、保管等契约关系,由承租人、保管人等实际占有的、属于出租人、委托人所有的物。简言之,它是基于真正权利人的意思而丧失占有之物。占有脱离物,是非基于真正权利人的意思而丧失占有之物,如盗品、遗失物等均属占有脱离物。占有脱离物原则上不发生善意取得,而占有委托物则相反,原则上得发生善意取得。这样规定同样是基于上述善意取得之价值基础的考虑。
(五)让与人须为无处分权人。
无处分权人是指没有处分财产的权利而处分财产的人。若让与人为有处分权人,则其转让为有权行为,不欠缺法律依据,自然无法适用善意取得制度。善意取得与无权处分是一对关系密切的制度,两者完全不可分割。无权处分是善意取得的前提,而善意取得则主要适用于无权处分行为。当真正的权利人拒绝追认时,如果有偿交易行为中的受让人是善意的,无权处分的合同仍然有效,受让人可以基于善意取得制度取得标的物的所有权。
(六)让与人须为动产的占有人。
善意取得中,因受让人为善意受让占有,故须有让与人占有可资信赖,始有善意之可言,让与人若非动产占有人,就没有占有的公信力。占有仅须让与人对动产有现实的管领力即可,而不以对动产的直接占有为必要。换言之,即使对动产为间接占有、辅助占有乃至瑕疵占有,也无不可。
通联:江苏省睢宁县人民法院凌城法庭
TEL:0516-8231012