论农村集体成员撤销权

发布时间：2018-05-28 23:28

本文选题：集体成员 + 撤销权　；参考：《西南政法大学》2015年硕士论文

【摘要】：农村集体成员撤销权,是农村集体成员对集体组织或其负责人侵害其合法权益的决定,可以请求人民法院予以撤销的权利。该权利在一定程度上改变了农村集体经济组织、村民委员会及其负责人任意侵害集体成员合法权益的状况。但是,《物权法》对农村集体成员撤销权的规定并不完善,主体存在缺失,权利行使期限也没有明确;同时,在该权利的适用过程中,对撤销事由和撤销对象有不同的理解,判决类型也存在多种形式。这不仅削弱了法律的权威,更不利于充分保障农村集体成员的合法权益,必须加以完善。本文主要通过对比的方式来凸显上述问题,继而从理论和适用两个方面解决问题,在此思路的指导下,全文分三个部分对农村集体成员撤销权予以探讨。第一部分,将农村集体成员撤销权与债权人撤销权、股东撤销权、业主撤销权予以对比,展示各个撤销权在主体、期限、撤销事由、撤销对象上的不同,寻找问题的突破口,说明集体成员撤销权可以借鉴的制度。第二部分,重点探讨农村集体成员撤销权理论上的完善。主要包括该权利的主体和期限。主体方面:原告方中,尽管法律规定只有集体成员才可以在诉讼中成为原告,但结合司法实际,村民小组集体也应具备原告资格,因为相对于村集体而言,村民小组集体也类似于集体成员。但诉讼中,应由村民小组作为代表参加诉讼;被告方中,村民会议不宜成为撤销之诉的被告。对于侵害集体成员合法权益的村民会议的决定,可以通过行政诉讼等途径解决。期限方面,物权法并没有规定成员撤销权的行使期限,参考股东撤销权的规定,考虑成员撤销权涉及人数众多,建议期限为“知道或应当知道撤销事由之日起60天内”。第三部分,重点探讨农村集体成员撤销权适用中的误区。主要包括撤销事由、撤销权对象、判决类型。撤销事由方面,法律规定“侵害集体成员合法权益”,笔者认为该事由不以实际损害的发生为标准,并且不用细化为实体权益和程序权益,但范围仅限于成员个人权益,而不能扩大至集体的权益。在撤销对象方面,法律规定为“决定”,但实践中却将该权利扩大适用到了“合同”,用撤销权来否决合同效力。显然,“决定”与“合同”存在本质区别,不能以撤销决定为依据,直接判定合同无效。在判决类型方面,通过分析不予审理、直接改判、责令重做、二次判决四种判决形式,可知只有责令重做,才最有利于协调司法救济与村民自治间的关系。通过理论完善和合理适用,希望农村集体成员撤销权能更有效的维护集体成员的合法权益。
[Abstract]:The cancellation right of rural collective members is the right of rural collective members to revoke the rights and interests of collective organizations or their responsible persons, which can be revoked by the people's courts. To a certain extent, this right has changed the situation of collective economic organizations, villagers' committees and their responsible persons infringing upon the legitimate rights and interests of collective members. However, the provisions of the property Law on the cancellation right of the rural collective members are not perfect, the main body is missing, and the time limit for the exercise of the right is not clear. At the same time, in the process of application of the right, there are different understandings of the reason of revocation and the object of revocation. There are also many forms of decision types. This not only weakens the authority of the law, but also is not conducive to the full protection of the legitimate rights and interests of the rural collective members. This paper mainly through the way of contrast to highlight the above problems, and then from the theory and application of two aspects to solve the problem, under the guidance of this idea, the full text is divided into three parts to rural collective members to cancel the right to discuss. The first part compares the cancellation rights of rural collective members with those of creditors, shareholders and owners, and shows the differences in the main body, the time limit, the reason of revocation, the object of revocation, and the breach of the problem. Explain the system that collective member cancels right to draw lessons from. The second part focuses on the theoretical perfection of the cancellation right of rural collective members. It mainly includes the subject and duration of the right. Subject: although the law stipulates that only the collective members can be plaintiffs in the lawsuit, the villagers' collective should also have the qualification of the plaintiff in the light of the judicial practice, because compared to the Yu Cun collective, the villagers' collective should also have the qualification of the plaintiff. Village groups are also similar to collective members. However, the villagers' group should take part in the lawsuit, and the villagers' meeting should not be the defendant. The decision of villagers' meeting that infringes the lawful rights and interests of collective members can be resolved through administrative litigation and so on. In terms of the time limit, the law of real right does not stipulate the time limit for the exercise of the member's right of revocation. Referring to the provisions of the shareholders' right of revocation, the author considers that the member's right of revocation involves a large number of people, and the suggested time limit is "within 60 days from the date of knowing or should know the reason of the revocation". The third part focuses on the misunderstandings in the application of the cancellation right of the rural collective members. It mainly includes the reason of revocation, the object of revocation right and the type of judgment. In terms of the reason of revocation, the law stipulates that "the legitimate rights and interests of collective members are infringed upon". The author believes that the cause is not based on the occurrence of actual damage and does not need to be refined into substantive and procedural rights and interests, but the scope is limited to the individual rights and interests of members. It cannot be extended to collective rights and interests. In the aspect of the object of revocation, the law stipulates "decision", but in practice the right is extended to "contract", and the validity of the contract is denied with the right of rescission. Obviously, "decision" and "contract" have essential difference. In terms of the type of judgment, through the analysis of the non-trial, the direct revision of the sentence, the order to do again, the second judgment of four forms of judgment, we can see that only order to do again, the most conducive to coordinate the relationship between judicial relief and villager autonomy. Through theoretical perfection and reasonable application, it is hoped that the cancellation right of rural collective members can safeguard the legitimate rights and interests of collective members more effectively.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.2

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