The practice of using rural household registration as a criterion to determine the identity of peasants has been criticized by legal scholars. At present, the mainland has continuously introduced new policies and laws to coordinate the development of urban and rural areas and the reform of rural social governance, but none of them has made a clear definition of the qualifications of peasants. The best way to properly safeguard the legitimate rights and interests of the peasants is to give them a clear identity. In the new era, the qualification of farmers is based on whether they have the right to use family land, whether they enjoy the benefits of rural collective economic organizations with family land use certificates, and whether they bear the obligations of rural collective economic organizations, which is conducive to solving the problem of "two skins" between farmers and farmers' collectives, and is conducive to the coordinated development of urban and rural areas.
1. The legal positioning of farmer qualification recognition in the new era
In order to understand the qualifications of peasants in the new era, it is necessary not only to understand the historical situation of peasants before reform and opening up, but also to understand the historical situation of peasants before the founding of New China.
Before the founding of the People's Republic of China, peasants were those who made a living by engaging in agricultural labor. It emerged with the emergence of private ownership of the means of production and classes at the time of the collapse of primitive society. In different historical periods, the nature of the peasants' economy was different. In the slave society, there were yeoman farmers and subordinate farmers. The former are free peasants who work on the basis of small plots of land; The latter were tenant cultivators who rented small plots of land from large landowners and had a status between free peasants and slaves. In feudal society, in addition to yeoman farmers, there were a large number of tenant farmers who rented landlords' land. With the collapse of feudal society and the development of capitalism, the differentiation of the peasants intensified, and strata such as hired peasants, poor peasants, middle peasants, and rich peasants were formed. During the period of the Republic of China, due to the backwardness of industrial production, peasants were the main force of China's social labor force, mainly relying on agricultural economic life, and most of them were tenant farmers and self-cultivated farmers; During this period, except for some of them who moved to towns to engage in industrial and commercial operations or became industrial workers, most of them were constrained by the level of industrial development of the country at that time. Many landless peasants relied on working for landlords, and according to the length of the construction period, these peasants were mostly called "long-term workers" and "short-term workers", "long-term workers" were peasants who were hired by landlords all year round, and "short-term workers" belonged to peasants hired during the busy agricultural season.
From the founding of the People's Republic of China to the reform and opening up, the peasants have gone through three historical periods. First, during the period of land reform (1949-1953), the land of the cultivators was realized on the mainland. The feudal landlord land ownership system, which had existed in the rural areas of the mainland for more than 2,000 years, collapsed and was replaced by the peasant land ownership system. The peasants of this period were both owners and operators of the land. Second, during the period of agricultural cooperatives (1953-1958), mutual aid groups, primary agricultural production cooperatives and advanced agricultural production cooperatives were successively experienced. During the period of mutual aid groups and primary agricultural production cooperatives, the peasants were not only the owners of the land, but also the collective operators of the land. During the period of high-level agricultural production cooperatives, the transformation of socialist public ownership of land was basically completed. The production team is the basic organizational form and labor unit, and all members participate in collective unified labor. The peasants of this period were members of the production team. Third, during the period of people's communization (1958-1978), the whole country realized the people's communes characterized by "one large and two publics" and "integration of government and society". The production team is the basic accounting unit in the people's commune, which implements independent accounting, is responsible for its own profits and losses, and directly organizes production. The people's commune system of "three-level ownership and team-based" has been formed, and the production team is the rural collective economic organization and the basic organizational unit of the rural grassroots political power. In January 1958, the Standing Committee of the National People's Congress (NPC) passed and promulgated the Regulations of the People's Republic of China on Household Registration in the form of a presidential decree, marking the formal formation of the dual household registration system between urban and rural areas, with the restriction of peasants' flow into cities as the core. In August 1964, the State Council approved and forwarded the Regulations of the Ministry of Public Security on the Handling of Hukou Relocation (Draft), which embodied two "strict restrictions": strict restrictions on migration from rural areas to cities and towns; Strict restrictions were imposed on the movement from market towns to cities. This regulation blocked the door for peasants to move to towns. In November 1977, the State Council approved and forwarded the Regulations of the Ministry of Public Security on the Handling of Hukou Relocation, which further emphasized the need to strictly control the entry of peasants into cities and towns. The peasants of this period were the agricultural population registered in the production team.
After the reform and opening up (1978 to the present), it has experienced a new period of gradual formation of the reform of the household responsibility system and the overall planning of urban and rural development. After the Third Plenary Session of the 11 th Central Committee of the Communist Party of China in 1978, the mainland entered a new period of reform and opening up. The 1982 Constitution proposed to abolish the system of integration of government and society in the people's communes, change the name of the people's communes to townships (towns), and implement the people's government system under the people's congress system; The production brigade was renamed the villagers' committee as a grassroots mass autonomous organization; The production team was renamed the villagers' group, and the villagers' group retained the identity of the original production team as a rural collective economic organization, and implemented a two-tier management system based on the household responsibility system and combining centralization and decentralization. The reform of the household contract responsibility system has gone through a change in the land contract period from "three years of minor adjustments and five years of major adjustments" to "15 years of unchanged", and then extended for another 30 years, and finally evolved into "long-term unchanged". The right to contract and operate land is determined by creditor's rights as real rights, and during the contract period, "increasing the number of people without increasing the land, and decreasing the number of people without reducing the land" is implemented, which stipulates that the premise of "major stability and small adjustment" of the contracted land is stability, and small adjustments are only limited to the exceptions prescribed by law. The right to contract land management is a usufructuary right, and peasant households can transfer the contracted land without directly cultivating the agricultural land themselves. A large number of peasants were freed from land cultivation and began to engage in secondary and tertiary occupations. In October 1984, the State Council promulgated the Circular on the Issue of Peasants Entering Market Towns and Settling In, stipulating that all peasants and their families who work, do business, or run service industries in market towns are allowed to settle down with permanent residence if they have a fixed residence in the market towns and have the ability to operate, or who have been working in township enterprises and institutions for a long time. Since the 80s, the policy of "turning agriculture into non-farming" has changed, the targets of "turning agriculture into non-farming" have gradually expanded, and the control methods have been changed. In June 1997, the State Council approved and forwarded the Ministry of Public Security's "Pilot Plan for the Reform of the Household Registration Management System in Small Towns", which stipulates that rural populations who are already employed or residing in small towns and meet certain conditions may apply for permanent urban residence registration in small towns. On July 30, 2014, the State Council promulgated the "Opinions on Further Promoting the Reform of the Hukou System", announcing that China's dual hukou management model of "agricultural hukou" and "non-agricultural hukou" that had been implemented for more than half a century has retired from the stage of history. The opinion stipulates that the withdrawal of the right to contract land management, the right to use homestead land, and the right to distribute collective income shall not be used as a condition for peasants to settle in cities. A large number of rural peasants have moved to cities to take up non-agricultural occupations.
To sum up, the academic community positions the peasants before the founding of New China as: "laborers engaged in agricultural production"; The peasants in the land reform period after the founding of New China were positioned as: "self-cultivated farmers"; The peasants in the period of agricultural cooperatives and the period of people's communes were positioned as: "members"; After the household responsibility system was introduced, the mainland legal circles defined the peasants as "the agricultural population whose household registration is registered in the rural villagers' group", so they are also called villagers.
The legal positioning of peasant qualifications in the new era is a "promotion and abandonment" of the legal positioning of peasant qualifications before the founding of New China and the legal positioning of peasant qualifications from the founding of New China to the reform and opening up. Emphasizing "promoting and abandoning" refers to inheriting and preserving the historical traditions of "rural collective economic organizations" from the founding of New China to before reform and opening up, while discarding those contents that do not conform to contemporary national conditions and are unacceptable to the peasant masses, such as "engaging in agricultural labor for a living" before the founding of New China and "agricultural household registration" before the founding of China and before reform and opening up. Therefore, positioning the members of rural collective economic organizations as peasants (in the new era) is in line with the historical tradition of socialism with Chinese characteristics and the national conditions of socialism with Chinese characteristics in the new era.
2. Legal standards for the qualification of farmers in the new era
The relationship between peasants and land is the most important production relationship in the history of the mainland, and it is also the main line of rural reform that has remained unchanged since the founding of New China. The determination of farmers' qualifications in the new era should be discussed around the legal relationship between family members and rural collective economic organizations, and whether they have the right to use family land, whether they enjoy the benefits of rural collective economic organizations with family land use certificates, and whether they bear the obligations of rural collective economic organizations as the criteria for identification, which can be analyzed from two aspects: family land contracting rights and homestead use rights.
(1) The right to contract household land is one of the legal criteria for determining the qualifications of farmers
The right to contract household land is obtained through household contracting within the rural collective economic organization. At the beginning of the rural reform and opening up, because the land contract period was relatively short, it was generally agreed to be three years, so the land contract management rights belonged to the peasant households. Later, with the revision of policies and laws, the land contract period was extended to 30 years, and a large number of peasants went to the cities to work, no longer directly operating the contracted land, but transferring the contracted land to others for management, and the mode of operation of peasant households changed, thus forming a new pattern of separation of three powers: collective economic organizations have ownership, peasant households enjoy the right to contract, and other entities exercise the right to operate. The right to contract and operate land is separated into the right to contract land and the right to operate, the former being a right with the nature of identity or membership, and is not enjoyed by non-members of the collective economic organization; The latter has no restrictions on the nature of membership, and non-members of the collective economic organization can also have the right to operate land. The right to land contracting is a right based on the membership of a rural collective economic organization, which can only be enjoyed by the members of the collective economic organization, and is an exclusive right in the civil rights system. It is precisely this relationship of exclusive rights that precisely shows that the members of peasant households, as the holders of land contracting rights, are members of rural collective economic organizations. Therefore, the right to contract household land is the legal criterion for determining the qualifications of farmers.
(2) The right to use homestead land is another legal standard for determining the qualifications of farmers
The right to use homestead land refers to the right to use construction land that has no expiration date and is allocated by a rural collective economic organization to its internal members for the construction of residential buildings and other appurtenances after examination and approval in accordance with law. According to the relevant provisions of the Land Management Law and the Property Law, the right to use homestead land is eligible. "Qualification" here means that the subject who obtains the right to use rural homestead must be an internal member of the collective economic organization, and from the perspective of the nature of the interconnection between the right to use the homestead and the membership of the rural collective economic organization, the right to use the homestead is one of the legal criteria for determining the qualification of farmers.
The right to contract household land and the right to use homestead land are collectively referred to as family land use rights, also known as family use land. Normally, members of rural collective economic organizations shall be identified on the basis of household use of land, and all members of the family members of rural households that have obtained land for family use are members of the collective economic organization. Therefore, the certificate of the right to contract and manage rural land and the certificate of the right to use the homestead land are not only the certificates for the peasant households to own the land for family use, but also the vouchers for the qualification of the peasants.
3. The legal significance of the qualification of farmers in the new era
(1) Taking household use of land as the criterion for determining farmers' qualifications is conducive to solving the problem of "two skins" between farmers and farmers' collectives
At present, there are two lines of thought for reform in the rural areas of the mainland. The first way of thinking is to reform the rural grassroots management system represented by the household contract responsibility system, which only focuses on the innovation of land contract management rights, and ignores the identification of farmers' qualifications. The second way of thinking is to reform the reform of the rural grassroots self-government system represented by the villagers' committees, which only focuses on the innovation of rural grassroots democratic management, and also ignores the recognition of peasant qualifications. Both of these reforms of the rural system embody the idea of returning power to the people, but the problem of the two types of reforms also arises with the problem of individual soldiers. Among them, the most conspicuous problem is that the various laws and policy documents related to agriculture currently in force on the mainland do not stipulate the criteria for determining the qualifications of peasants, and the concept of peasants is vague. The problem of "two skins" has emerged between peasants and peasant collectives, which has led to mutual disputes between peasants and peasant collectives in the practice of rural grassroots work. For example, rural contractor households that have settled in cities to live in the city refuse the obligation of rural collective economic organizations to distribute on the grounds that they are not rural residents; Or, through democratic deliberations, rural collective economic organizations do not recognize the identity of peasants who go out on the basis of the criteria of household registration or habitual residence, infringing upon the lawful rights and interests of peasants whose household registration is not in their own village or who do not regularly reside in their own village, but who have families in their own villages to use land. In addition, the people's courts often hold that such membership cases are disputes over rural grassroots autonomy and do not fall within the scope of civil litigation, and that judicial remedies for farmers are not guaranteed.
Taking the family use land as the criterion for determining the qualification of farmers, when the household obtains the family use land, all members of the family automatically become members of the collective economic organization, that is, farmers in the legal concept; Through this system design, the qualifications of farmers have been guaranteed, and the shortcomings of the traditional farmer identification system (that is, the requirement to be registered as a member of the household registration of the collective economic organization at the police station before they can become farmers) has been effectively solved. Therefore, a rural collective economic organization may not deprive peasants of their qualifications, and peasants may not fail to perform their collective obligations on the grounds of giving up their membership in collective economic organizations. Rural collective economic organizations shall formulate management charters through villagers' meetings, and elect management organs to exercise land ownership on behalf of the collective. The relationship of rights and obligations between peasants and rural collective economic organizations is clarified.
(2) Taking family use land as the criterion for determining the qualifications of farmers is conducive to the coordinated development of urban and rural areas
Most of the research on the coordinated development of urban and rural areas in mainland academic circles focuses on speeding up the transfer of rural labor force to cities, and regards the relaxation of urban household registration requirements as a breakthrough in the reform of coordinating the coordinated development of urban and rural areas. However, the key to coordinating the coordinated development of urban and rural areas is to realize the integration of the socialist market economy between urban and rural areas, and in particular, to continuously improve the economic system and economic order that exist in the "convective open relationship" between urban and rural areas. In layman's terms, it is to break down the barriers between urban and rural areas. On the surface, this barrier is a household registration management system that separates urban and rural areas, but at a deeper level, it is a rural land management system. State-owned land use rights can be put on the market, and peasants can go to the city to buy houses and land. However, the use of land by peasant households is restricted to the internal transfer of the collective economic organization, and urban residents are not able to buy houses and land in the rural areas, resulting in unimpeded investment channels for urban private capital to the rural market, which has become a bottleneck for rural revitalization.
Taking household use of land as the criterion for obtaining peasant qualifications is conducive to exploring the exit mechanism of peasants. At the same time that the head of the household transfers the land for family use, the membership of all members of the family in the collective economic organization is transferred at the same time, and the members of the household automatically become members of the collective economic organization at the same time as the right holder obtains the land for family use. In this way, local people's governments, relevant functional departments, and rural collective economic organizations may not force peasants who have settled in cities to withdraw from family use of land against their wishes, and on the basis of full respect for autonomy of will, peasants who have settled in cities may withdraw from rural collective economic organizations through compensation, and urban residents may become members of rural collective economic organizations by acquiring land for family use.
To sum up, peasants are family members who have obtained the land use rights of rural collective economic organizations, and are also members of rural collective economic organizations, and individuals who enjoy the benefits of rural collective economic organizations and bear the obligations of rural collective economic organizations with the land use certificates of their families.
(The author is a first-class judge of the Longhui County People's Court; Source: China Rural Discovery, Issue 4, 2021)
