How Do Farmers Realize Their Rights on the Collective Land in Rural China? An Explanatory Framework for Deconstructing the Subject of Collective Land Ownership

Abstract

This study aims to deconstruct the collective, the subject of collective land ownership. With respect for the logic of the formation of collective land ownership, we propose the “transfreserve” mode to portray the division of rural land rights between the members and the organization in the transformation from private ownership to collective ownership. This idea can be expressed as, prompted by the public power of the state, each farmer as the owner of rural land having to transfer part of his/her rights to the organization when associating, meanwhile each one still reserves part of his/her rights. We term the rights transferred to the organization as special legal person ownership, while the rights reserved by each farmer are called membership rights. The rights exercised by all members on the basis of membership rights are the autonomous rights. In terms of the property rights, such as the distribution right of the collective income, farmers have to participate in decision-making to determine how to form the allocation scheme in a fair and reasonable way by exercising autonomous rights; then, organization fulfills the collective will to meet the needs of its members by exercising special legal person ownership. As for the right to use public infrastructure on the collective land, farmers, as the members, can use it reasonably by its own will, which is the process of exercising membership rights. If farmers’ rights are infringed by other members, they can choose to negotiate with other members in a proper way. If farmers’ rights are infringed when the organization carries out operation activity in the land market, they can obtain compensation from the organization, and the compensation standard is determined by the decision-making.

1. Introduction

The land system is the most important arrangement of production relations in a country and the most basic system in all systems [1,2,3]. China is a typical society characterized by a double-track land ownership system, with urban land being owned by the state and rural land owned by the collective, thus forming two institutionally distinctive domains, namely, urban China and rural China. According to Chinese law, rural land is owned by a village collective, which is widely criticized by scholars as an ideological concept rather than legal terminology [4,5,6,7,8]. As established in the socialist transformation period (1953–1956), rural land is owned by the community, is formalized by the “village collective” and each farmer in the local community is a member of the collective [9]. From the dissolution of the People’s Commune until today, rural land is vested at three hierarchical levels, i.e., the township, the administrative village and the natural village [10]; however, how much each entity is entitled to has never been clearly delineated, and the ownership boundary of the collective is not fixed [5,11]. Scholar Peter Ho believes that this phenomenon can be termed as “intentional institutional ambiguity” of rural land property rights, as policymakers intentionally blur the concept of the “collective” when formulating laws, leaving sufficient room for maneuvering to cope with emergencies [12,13]. The defect of the rural land system is assumed to serve China’s planned economy at that time, as the capital needed for the development of heavy industry had to be obtained from agriculture [9]. It has thus long been treated as the major hindrance to China’s further economic development [14,15,16]. The rural land reform of 2013 mandated the issuing of land certificates nationwide [17], which aimed at clarifying the property rights in rural areas.

In general, clearly defined property rights are believed to have a legally qualified owner who is capable of exercising its property rights. However, the collective cannot independently enjoy civil rights and assume civil obligations [18]. Therefore, the collective economic organization, villagers’ committee and villagers’ groups have been the holders of the collectively-owned land, and are in charge of its administering and managing even today [19]. However, the will and behavior of the villagers’ committee is not legally bound by the will of the village collective [20], and the rural collective economic organization which works to express and fight for the interest of the village collective [21] is not widespread in rural areas1 or lacks a normative governance structure2. The interests of the village collective are therefore hardly to be protected. Since the village collective is an assemble of persons with a certain identity, and each farmer with a rural household registration is regarded as a collective member [15], one can imagine that the member’s rural rights on the collective land will be hard to achieve in this case.

The value of the rural land system lies in realizing the interests of the village collective; in other words, the rural land system determines that farmers as collective members have homogeneous memberships and that land properties are distributed equally [22]. It is worth mentioning that land properties distributed equally do not mean the absolute equality allocation of collective resources and income, and it allows a difference brought about by personal capabilities and efforts [23], as long as the procedural justice emphasizing the equalization of initial personal basic rights and opportunities is guaranteed [24]. As a member of the collective, how to realize farmers’ rights in the dimension of collective common interests is worth exploring, which is also the key to the operation of collective land ownership. Obviously, the simple provision that rural land is owned by a village collective and the ownership is exercised by the villagers’ committee or the rural collective economic organization fails to provide a legal and normative path for farmers to realize their rights on the collective land. This study is devoted to providing an explanatory framework that can be employed to deconstructing the collective, which attempts to answer the question of, in the operation of the collective land ownership, how to ensure the farmers as the members realize their rights in the dimension of collective interests. The significance of this study has two folds. Firstly, it explores the internal structure of the subject of collective land ownership, in turn providing the legal basis for improving the subject system in law, which also fills the gap in this research issue. Secondly, it formalizes the governance order of the collective land ownership by illustrating the rights relations of the members and the organization, thereby guaranteeing farmers can realize their rights on the collective land through an effective manner.

In this study, we deconstruct the village collective by unfolding its inner structure, i.e., members of collective, the collective composed by members and the collective organization (hereinafter “member”, “collective” and “organization”, respectively). We use “one axis” to characterize the coherent whole of the three constitutes as the subject of the collective land ownership. After unfolding the inner structure of the village collective, the internal and external stages of the collective land ownership are clear. We use “two stages” to represent the relatively separated operation process of the collective land ownership. Therefore, the “one axis, two stages” explanatory framework is formed and will be presented in detail in the next part. The explanatory framework will be employed to account for how farmers realize their rights on the collective land, which also proves that the intentional ambiguity of the village collective as the subject can be clear through an in-depth analysis.

Following this study, the methodology we adopt is explained in Section 2; we combine the methods of a historic analysis, logic analysis and normative analysis, so as to ensure the whole analysis adheres to the unification of history, reality and logic. In Section 3, we briefly retrospect the formation process of collective land ownership, especially drawing attention to the division of land rights between the members and the organization. In Section 4, we raise the one axis, two stages explanatory framework that is faithful to what has happened and is happening in rural China, to portray the operation of collective land ownership. In Section 5, we further discuss how this framework could be applied to understand how farmers realize their rights on the collective land. The discussion is arranged in Section 6. Finally, we come to the conclusions in Section 7.

2. The Methodology of the Study

The issue of how farmers realize their rights on the collective land is closely related to the operation of collective land ownership, which needs to deconstruct the village collective that has long been criticized for its failure to function well. In order to avoid falling into mere legal deduction and neglecting local practice in rural China, we adopt the methods of a historic analysis, logic analysis and normative analysis, the purpose of which are to pursue the unification of the history, the reality and the logic in this study.

Specifically, we conduct a brief retrospect of the formation of the collective land ownership using the historic documents released by the state to examine how land rights are divided between the members and the organization, which provides a basis for the deconstructing of the village collective. This is an important method employed in the institution research, as the history of one institution should be explored if it needs to be better understood. It is particularly true for the collective land ownership system with Chinese socialism. The institutional extraterritorial experience can never be directly and mechanically applied to guide the construction of the rule of law in China. Then, we raise the explanatory framework based on both the historic analysis and the observation of what has happened in rural China. Our long-term fieldwork on the rural land system also helps to refine the theoretical portrayal. Thus, it ensures the adaptability of this framework to the complex and vivid practice in rural China. Finally, in applying this framework to interpret the realization of farmers’ rural rights, the logic in the existing laws and regulations is strictly followed, as it is the premise of the normative analysis. In addition, we endeavor to reveal the operation mechanism of the internal relation and the external relation of the collective land ownership which is still outside the explicit norms of the laws and regulations.

Anyway, the whole study respects the facts on collective land in rural China, and makes the judgement in line with the unification of the history, the reality and the logic.

3. Formation Process of Collective Land Ownership: A Historical Perspective

Before the foundation of the People’s Republic of China in 1949, China’s land belonged to private property rights, and villagers had ownership of the rural land [25]. Based on the principle of private property, farmers can dispose of land at will within the scope of the law, including buying and selling, tenancy and other forms of transactions [3]. However, the amount of land owned by each farmer was extremely unequal at that time. The poor farmers and peasants accounted for 52.4% of the rural population, but their farmland holding only represented 14.3% of the total; however, landholding by the landlords, whose number stood at 4.8% of the rural population, went as high as 38.3% of the total farmland stock [26]. Addressing this injustice, agrarian land reform was carried out soon after the 1949 liberation under the banner “land to the tillers” [27]; per capita farmland holding became equal as a result [28]. At the end of 1951, the Central Committee of the Communist Party (CCCP) of China issued a notice “Mutual aid and cooperation in agricultural production decisions (Draft)”, which provided agricultural mutual aid and cooperation in the simple form of labor cooperation but did not change the ownership of each farmer. Mutual aid groups merely expanded the scope of individual labor and had no control over farmers’ rural land. On 16 December 1953, the CCCP also released its “Decision of the Central Committee of the Communist Party of China on developing agricultural producers’ co-operatives”, which required the movement of mutual aid, turning to focus on the development of agricultural producers’ co-operatives. Soon after, “The draft model charter of agricultural production cooperatives”, issued on 9 November 1955, provided the further development of agricultural production and cooperation, dividing it into primary and advanced stages during which the conversion of farmers’ private land ownership to collective ownership increased more rapidly [9]. In the primary stage, cooperatives only enjoyed the rights to use the land, and at the same time, it admitted the land shares invested by individual farmers. While in the advanced stage, all land was transferred to cooperatives except for the land for farmers’ residences; farmers no longer held any land share. However, advanced co-operatives also allowed farmers to leave with the land one joined.

Inspired by the upsurge of agriculture co-operatives and catching-up strategy of heavy industry to extract agriculture surplus, the People’s Commune emerged as the times required. The Commune enjoyed the ownership of all land and farmers engaged in agricultural production as orderly under the leadership of the Commune Management Committee who represents the state’s voice. As such a rigid system frustrated farmers’ enthusiasm for agricultural production and caused the collapse in agricultural output [29,30], the central government further clarified the ownership of land by the People’s Commune as three-level ownership with the team as the base unit, that is, the collective ownership of land belonging to three entities (the commune, the brigade and the team) and the team being the basic holder, which lasted until 1978 [12,31]. With the realization of the country’s preliminary industrialization goal and the completion of the accumulation of primitive industry, the drawback of the commune system had gradually emerged [32]. Through grass-roots innovations, official support and policy implementation [3], a new rural land system called the Household Contract Responsibility System was introduced, allowing farmers to sell any surplus to the quota on the free market at unregulated prices [17]. It was popularized throughout the country in 1984, and laid a good foundation for the development of a market economy in China [3]. It also realized the separation of ownership and contractual management rights, with the former belonging to the village collective and the latter to the farmers. Since then, with the market-oriented reform and rapid urbanization, the rural land system reform has deepened while the rural land belonging to the village collective has remained steady.

It is not hard to see that the rural land system originates from a socialist transformation, aiming at establishing public ownership and eliminating private ownership. The land revolution realized the equalization of private land ownership. The mutual aid group initially produced labor cooperation while persisting farmers’ land ownership. Primary agricultural co-operatives continued land ownership by individual farmers while they had the rights to use land to organize agriculture production, which signified that the organization came to control rural land. Starting with the advance of agricultural co-operatives, organization began to enjoy the ownership of rural land, leaving farmers the room to gain the outcome of the agriculture production. Since then, until the People’s Commune, the control over rural land has been continuously strengthened. Entering the period of Household Contract Responsibility, land ownership belonged to the village collective, but it was usually exercised by the villagers’ committee or the collective economic organization. With the deepening of the land market-oriented reform, the control over rural land by the organization has gradually weakened (

Table 1. The division of land rights between members and organizations.

Period	Members	Organization
Land revolution	land ownership	-
Mutual aid group	land ownership	-
Primary co-operatives	land ownership	rights to use the land
Advanced co-operatives	rights to benefit	land ownership
People’s Commune	rights to benefit	land ownership three entities (the commune, the brigade, and the team)
Household Contract Responsibility System	rights to benefit	land ownership (village collective)
Land system reform	rights to benefit	land ownership (village collective)

).

4. Explanatory Framework for Deconstructing the Subject of Collective Land Ownership: One Axis—Two Stages

Debate over property rights in China revolves around two opposing points: private property rights and collective property rights, and especially concerns the ultimate question of which is better fitted for post-socialist China [19,33,34,35]. New institutional economists draw from Coase’s seminal work, holding that property rights’ initial allocation determines how effective the economic system operates [7,36]. Therefore, some scholars argue that private ownership is theoretically superior to collective ownership in the free market since the latter could lead to inefficient resource allocation, such as the “tragedy of the commons” [37,38] and “rent dissipation” [39]. However, due to the excessive restrictions of laws, regulations and policies on rural land-use and interests in rural land, rural land in China has specifically strong assets [40]; its attributes are totally different from standard commodities. The rural land system is believed to be necessary and appropriate due to the internal governance pattern where the output of the specific range of land meets the basic needs of certain farmers [41]. Therefore, collective land ownership has its unique institutional advantages in China. Also, the collective land system should be insisted, and the interpretation of it should not be totally confined to the institutional extraterritorial experience.

In addition, the rural land system in China follows the tradition of the Continental law system and refers to general private ownership in the legislative technique [42]. It is shown that the subject of ownership regulated in the Civil Code is generally assumed to be the “atomized individual”3 [43,44]. The so-called “atomized individual” means that as the subject of the property right, it is an independent and discrete individual who can dominate the property right and trade it according to one’s own will in the free competition market. The formation of an individual’s will and the execution of an individual’s will are unified in a legal act. However, the village collective composed by members is by no means the atomized individual. If we simply apply the “atomized individual” assumption to examine collective land ownership, it is easy to come to the conclusion that the collective land ownership can be freely dominated by a specific natural person with one’s own will, which is pretty ridiculous. It proves that the civil code fails to formalize the operation of the collective land ownership, revealing that novel solutions should be established based on the fact. This is what we argue, that the village collective needs to be unfolded from the inner structure, thereby forming two relatively separated stages, namely, the formation of the collective will and the execution of the collective will.

4.1. One Axis: Members–Collective–Organization and Its Relations

In fact, from the normative expression of collective land ownership in legal text, the rural land belonging to the village collective includes at least two elements, namely, the members and the collective semantically. Many members constitute the collective, i.e., members belonging to the collective and the collective composed of members. The subject of rural land can be unfolded as the form of the members–collective. From the perspective of the structure, members are the natural persons with membership status, which is a “personal state”, while the collective is an assemble of persons with membership, which is an “assemble state”. A large number of members need rural land as a material basis for their survival and development; therefore, a specific organization is needed to manage the rural land, which is demonstrated by the history of collective land ownership. In the past, such organization existed in the form of the agricultural producers’ co-operatives or the people’s commune, while at present, the villagers’ committee or the rural collective economic organization is such an organization4. It is responsible for carrying out specific functions on the collective land. To date, we unfold the structure of the subject in the form of “members-collective-organization”. As one said, the subject of collective land ownership cannot simply be expressed as the “collective”, but should be the combination of the collective, the members and the villagers’ committee or the rural collective economic organization [45].

It should be noted that the form “members–collective–organization” constitutes the subject structure of the collective land ownership, which determines that the three parties exercise rights and fulfill obligations in accordance with certain rules, and jointly promote the operation of the collective land ownership. It also proves that the subject of the collective land ownership is different from the private owner as an atomized individual. The three parties are indispensable and cooperate with each other, so that collective land ownership can operate well.

What the relation among the three parties is worth discussing, as it concerns the functions of the three parties in the operation of collective land ownership. As one said, property rights can be succinctly described as the “subject of the property rights+rights held by the subject” [40]. By this logic, collective land ownership is considered to be divided and configured among the members, collective and organization. In other words, collective land ownership has formed “qualitative division” rather than “quantitative division” among the three. In this regard, one has explained the difference between the two types of division; the so-called “qualitative division” refers to the interrelation of the ownership content within the subject at different levels, while the “quantitative division” means that several persons own the same ownership but enjoy the content based on one’s apparent or potential shares (gongtong gongyou or anfen gongyou) [46]. The members, collective and organization actually form the “qualitative division” of rural rights on the collective land. As for how to form the division of land rights on the collective land and what the relation among the three is after the division, it should be analyzed from the formation of the collective land ownership mentioned in Section 3.

Collective land ownership is the product of public power promoting, implanting and restricting the rural society [47], which embodies the will of public power. From the formation process of collective land ownership, we can clearly find that after accomplishing the “land to the tillers” in the private sense, the state gradually guides farmers to embark on the road of cooperation so as to realize the concentration of the rural land in a larger scope and degree until the complete and thorough collective land ownership. The transformation from private ownership to collective ownership of the rural land is essentially the qualitative division of the land rights between the members and organization, which can be illustrated as follows.

As the original private owner of rural land, each farmer has to transfer part of their rights to the organization to assume when associating together under the public power, while still reserving part of their rights to claim rights for themselves and restrict the behavior of the organization, thereby realizing the division of land rights between members and the organization by the logic of “transfer–reserve” mode. The division of land rights has undergone the “qualitative change” before and after the transformation from private ownership to collective ownership of the rural land; the original pattern is that rural land is owned and dominated by each farmer independently, while at present, farmers have become members of the organization and rural land is owned by the village collective during which members can claim the interests for themselves and supervise the behavior of the organization by the rights reserved, and the organization can perform management by the rights that farmers transferred.

This is actually the theoretical explanation that is in line with the practical operation of collective land ownership. Taking farmland contracting as an example, according to the law, the farmer as the member has the qualification to apply for contracted farmland from the organization, while the organization has the obligation to allocate farmland to each farmer. The connection linking the two is the rules that coordinate the contradictions among members to achieve the common will that can be implemented, which is termed as the democratic decision-making outcome by the collective.

In the following analysis, we term the rights reserved by each farmer as membership rights, while the rights transferred to the organization as special legal person ownership and most importantly, the rights of the collective as autonomous rights, which is based on the membership rights of each farmer. The relation among the three can be interpreted as follows (Figure 1).

Membership rights are the premise of the individual farmer to claim interests in the organization. The farmland contractual operation right, the right to use residential land and the distribution right of the collective income are based on the membership rights [48]. Membership rights reserved are not only beneficial for restricting the behavior of the organization when it exercises the rights transferred to fulfill their management obligation, but also provides the basis for each member to assemble to participate in democratic decision-making so as to form the common will.

Autonomous rights are the key to realize the individual interests of each farmer from the collective interests, which embodies that the rural land system pursues an overall efficiency value. As long as there is a majority of users on public resources, there will inevitably be potential conflicts of interests between users that need to be reconciled. Only through the adequate consultation of members can individual interests be achieved. The outcome of the democratic decision-making also provides criteria for organization to perform on behalf of the common will of members.

Special legal person ownership belongs to the organization. Villagers’ committee or rural collective economic organization is labeled as a special legal person in the Civil Code. Especially, the rural collective economic organization refers to the community-based cooperatives in rural China [49]. It should not only engage in profit-making activities, but fulfill the obligations of protecting the basic survival and development interests of members and provide public services. Therefore, it should implement the common will produced by decision-making so as to protect the interests of each member. Apparently, the relations among the membership rights, the autonomous rights and the special legal person ownership forms the “triangle” of mutual restrictions.

In this “triangle” relation, the member, the collective and the organization have both rights and obligations; only by binding the exercise of rights with the performance of obligations can the reasonable exercise of rights be guaranteed. As for the member, in general, the member can give up exercising the rights of claiming individual interests contained in the membership rights; however, the member cannot give up performing the obligation of not preventing another member from exercising rights, as giving up the obligation may affect or even diminish the legitimate rights of others. At this point, the organization has the right to require members to perform their obligations so as to help members realize their rights.

4.2. Two Stages: The Formation of the Collective Will and the Execution of the Collective Will

When an individual with a full capacity for civil conduct dominates property rights, the operation of the will is a process of making a self-interest selection with the help of the physiological function of the brain. Therefore, the formation of the will (how to dispose the property rights by inner intention) and the execution of the will (the external behavior of disposing the property rights) are integrated into one legal act. However, the rural land is owned by the village collective whose will cannot be formed and executed in one legal act. The operation of the collective land ownership needs to rely on the collective will generated by decision-making, which requires the overcoming of individualistic behavior and the achievement of common goals. Moreover, the implementation of specific matters is left to the organization capable of taking effective action. Therefore, the formation of the collective will and the execution of the collective will must be divided into two legal acts.

The formation of the collective will is produced in the internal stage, which can be considered as a kind of collective action. It is conventionally understood as arising from a shared interest between a group of people [50]. The key to the exercise of collective land ownership is to clarify the mechanism of the collective action [51]. Due to the rural society being dominated by the “difference order pattern” (cha xu ge ju), which relies on the social network rather than the market logic in allocating resources [52,53], the formation of the collective will requires sufficient trust among members [54]. Therefore, it calls for the extensive and active participation of members, and gives full play to the advantages of the village rules, customs and cultures to promote the formation of the common will. The operation process of the internal stage is actually a collective action process in which members realize their rural rights in the dimension of the collective interests, which pursues the fair and reasonable allocation of resources among members in principle. In the internal stage, the operation of the collective land ownership mainly includes the allocation of farmland, residence, the distribution of the collective income, as well as providing the infrastructure and public services on the collective land. The membership rights of each member are the main carrier of the internal stage, as every member assembles to participate in the collective action with it to realize rural land rights from the collective. Organization has the obligation to allocate resources and income to each member based on the collective will. Surely, some of the members or the organization may not obey the collective will, thereby infringing on the rights of other members. At this time, remedy methods should be introduced to restore the lawful rights of those members.

The execution of the collective will is performed in the external stage. Its essence is the rural land value-added process in the market. For a long time, rural land, considered as a means of production, is greatly devalued [55] or even lacks of the real market [56]. The Chinese government has actively promoted the reforms of rural agricultural land, collective operating construction land and the homestead to further remove the dual institutional barriers that hinder the establishment of an integrated land trading market [3]. The operation process of collective land ownership in the external stage endeavors to fully demonstrate the economic value of rural land and embody the efficiency of trading. Collective organization enters the land market in the form of exercising the special legal person ownership through rural land transferring, leasing and mortgaging. It should be admitted that the operation of collective land ownership in the external stage is a process in which the organization takes rural land as an element to realize asset appreciation on behalf of all members. Although the collective organization as a legal person can operate independently in the land market as long as it follows the private rules, the behavior of the collective organization should not be detrimental to the interests of its members. This is also unique for its special legal person identity. After all, the ultimate beneficiaries of the appreciation of the collective land assets are the members within the collective organization. Therefore, in addition to following the private law in the land market, the collective organization should also be alert to and avoid the risk of infringing the interests of its members. Otherwise, it needs to give reasonable compensation to the members whose interests are violated.

In all, the trinity of the members, the collective and the organization, as well as the relation among the three, constitute the “one axis”, while on both sides of it, the internal stages and the external stages of the collective land ownership are formed, representing the formation of the collective will and the execution of the collective will, which we term as the “one axis–two stages” explanatory framework (Figure 2).

5. Farmers Realize Their Rights on the Collective Land

This section endeavors to employ the framework above to systematically analyze how farmers realize their rights on the collective land. In general, the state gradually transferred the land from farmers to the organization for management, the purpose of which is to allocate rights and interests for their survival and development in a certain rule. The identification of membership is related to the resource allocation [57]. Therefore, only farmers with membership are entitled to realize their rights on the collective land. In essence, farmers need to realize their rural land rights by exercising membership rights. The process involves three aspects: firstly, how do farmers claim their rights to the collective; secondly, how do farmers benefit from the common interest in a fair and reasonable way; thirdly, how do farmers seek relief when their rights are violated. Only by clarifying the three issues can farmers realize their rights in each stage smoothly.

5.1. Farmers Claim Rights to the Collective

As one said, the qualification rights of each farmer are a real right, which is used to ensure that farmers acquire a piece of rural homestead free of charge from a rural collective [58]. Therefore, membership rights are the premise and basis for farmers to obtain specific property rights [48], such as the farmland contractual operation right, the right to use residential land and the distribution right of the collective income. We argue that membership rights are the cause and the essence, while these property rights acquired on the basis of membership rights are the result and the form [59]. The connection and difference between the two should be made clear.

The value of farmers’ membership rights lie in the realization of specific property rights, which originates from both the internal stage and external stage of the collective land ownership. In order to realize these property rights, farmers have to exercise membership rights, the process we term as claiming rights to the collective. According to the different property rights that farmers want to acquire, there are certain differences in the procedure of exercising membership rights. As for the property rights, such as the right to use the public infrastructure on the collective land, farmers as the members can use them reasonably by their own will, which is the process of exercising membership rights. However, in terms of the property rights such as the farmland contractual operating right, one has to go through four steps when claiming rights to the collective.

Firstly, the organization shall have the conditions to allocate resources and income to its members. This is determined by various factors such as the total amount of assets, the collective operation situation, the number of collective members and the policy provisions, etc. The organization shall promptly announce to its members when the conditions above are fulfilled. This is the obligation that an organization should fulfill, and is also the embodiment of the right to know enjoyed by each member.

Secondly, members shall claim rights to the collective in a reasonable way, which is manifested by information registration indicating their intention to participate in the allocation. This is because it is necessary to express the inner will of the member through the external act to produce the legal effect of exercising the membership rights.

Thirdly, due to the consideration of fair value related to the collective will, the allocation of the resources and income is subject to the democratic decision-making. It is a kind of collective action which needs members to negotiate to produce the common will, thereby providing the basis for the organization to implement allocation. The process is based on the membership rights, as the collective action is always centered on the realization of each member’s interests.

Fourthly, the organization is responsible for allocating resources and income to each member on the basis of the collective will to which the behavior of the organization should be bound strictly. Otherwise, it must compensate its members for the losses caused by its exclusive interests.

It should be noted that claiming rights to the collective is the exercising of membership rights, which is a legal act that each member can behave independently. However, in order to transform the right of the claim contained in the membership rights into the property rights, it needs the cooperation of the collective and the organization. In this process, members have the right to advise and supervise the behavior of the organization so as to ensure that their rights can be achieved.

5.2. Farmers Benefit from the Common Interests

It seems that the main tone of collective land ownership is egalitarianism, as it emphasizes the equal distribution in which an individual holds the same number of land rights which may be materialized as the same size of farmland plots or the same amount of land-based revenue [28,60,61]. However, the general trend of institutional change in China is to reduce the portion of command economy aspects and to increase the portion of the market-based aspects [62]; the absolute equalization may go to extremes to hinder the boost of collective vitality. The criteria for judging the allocation should reflect the relationship between efforts and rewards, which implies the existence of reasonable personal incentives. Anyway, the specific allocation of the resources and income is determined, to a large extent, by the collective will formed in the collective action.

Collective action among members is costly and does not always lead to the expected outcomes, especially as the number of members increases. Therefore, forming the collective will does not expect the participation and agreement of all members. It can be proved by the democratic decision-making rules in the Land Administration Law and the Organization Law of Villagers’ Committee5.

In general, when the members are informed for decision-making, not all members are willing to participate; the reason for this is diverse. Therefore, decision-making can be taken as long as more than a certain percentage of the total number of members participate. Otherwise, collective action cannot be achieved. As for those who are absent for decision-making, their rights are not infringed as they voluntarily waive them.

In the decision-making, the members have to fully consult on the specific issues by applying the laws and regulations, the village rules, customs and the culture to make sure that each member can fairly and reasonably share the interests from the collective. Taking farmland as an example, the rights members realize about it mainly includes two forms: one is the right to acquire some specific plots from the collective, and the other is the right to share the income from the operation of the collective. The former refers to the household contract mode which requires members to form an allocation scheme of the farmland in the decision-making, while the latter refers to the modern agriculture mode which requires members to determine how to distribute the revenue from the collective. Although the content of the decision is different, the essence of the two is to coordinate the conflicts of the interests of each member to the maximum extent, so as to obtain the consistency of the interests of each member in the overall dimension. To be sure, due to the principle of the “majority rule” (shaoshu fucong duoshu) in the decision-making, the collective will could produce the negation of the individual will of some members who disagree with the resolution; however, the collective will still has its legal effect as long as the procedure followed by the resolution is legitimate.

We term the rights exercised by the majority of members as autonomous rights, as forming the collective will relies on collective action rather than individual behavior. The process is based on the membership rights of each member while this differs from the membership rights exercised independently. Once the collective will forms, it becomes the criteria for organization to implement the allocation of the resources and income to each member. Therefore, farmers could benefit from the collective. To a certain extent, collective interests have transformed into individual interests. The property claims contained in the membership rights are converted into real property rights through the exercising of autonomous rights.

5.3. Farmers Seek Relief When Infringed

Farmers’ rights infringement can be divided into two types. One is the infringement of the internal behavior, which is manifested as rights infringement by other members and rights infringement when the organization allocates resources and income. The other is the infringement of the external behavior, which is manifested as rights infringement when the organization carries out operation activity in the land market. No matter what kind of farmers’ rights are infringed, they have the right to seek corresponding relief based on the exercising of their membership rights to restore their legitimate rights.

As for the first type of rights infringement, anyone whose rights are infringed can choose to negotiate with another member or the organization in a proper way. Habits, moral and ethics in rural areas are supposed to be the tools for solving the dispute over rights infringement, as it is the governance rules that members are familiar with in their daily life. The behavior of members to negotiate with an organization to restore rights that are infringed can be regarded as a way of exercising their membership rights, as the claim to rights contained in the membership rights corresponds to the property rights in a complete sense. While the behavior of members to claim for the restoration of infringed rights from other members, in essence, this is the embodiment of realizing the equality of each member’s interests.

As for the second type of rights infringement, the mechanism would be relatively complicated. Organization trading in the land market is undoubtedly an independent private law act, while due to its special legal personal identity, it should be responsible for its members. This can be understood in two aspects. On one hand, the organization in the land market, as the general operation entity, follows the rules in private law. Both sides enjoy equal statue in the operation activity. Particularly, as the counterpart to the organization’s transaction, the operation entity in the land market is not obliged to judge whether their conduct involves the collective will; otherwise, it will reduce the efficiency of market transactions. The organization as the special legal person can freely carry out market transactions as a general legal person. Therefore, the exercising of the special legal person ownership by the organization in the external stage is not different from the exercising of ownership by a general legal person in the market. On the other hand, the organization as a special legal person should be responsible for the interests of its members, as it is considered to be the benefit allocation unit of members. It cannot infringe the legitimate rights of its members by purely pursuing self-interest. Therefore, if the market transactions of the organization infringe on the interests of its members, it must compensate its members in an appropriate manner. As for how to determine the standard of compensation, we argue that it should depend on the decision-making by the collective. This shows that the behavior of the organization in the internal stage is always restricted by the collective will and the exercising of the special legal person ownership is different from that of the general ownership.

6. Discussion

6.1. Strengthening the Relationship between the Farmers and the Collective

Collective organization in rural China is generally represented by some cadres overseen by local governments [55]. The rights regarding decision-making and profit sharing are ignored in the current rural land system, or at least, they are not regulated systematically in laws; therefore, the farmers and the collective have a loose relationship [15]. Membership rights concern the individual interests of each farmer in the collective and act as the connection between the farmers and the collective. Farmers with a membership identity can claim rights to the collective by exercising membership rights. Clearly defining the membership rights is the premise for and is critical to farmers realizing their rights. The membership rights system should be established in laws to protect farmers’ rights in the collective. It can be regulated by laws in the following aspects: the identification of the membership, the content, the exercising process and procedure of membership rights, as well as the relief channel of membership rights. Only by systematically establishing the membership rights in laws can the relationship between the farmers and the collective strengthen, thus ensuring the basis for the realization of property rights by the farmers in the collective.

Our proposed framework activates the relationship between the farmers and the collective. We take membership rights as a starting point, as the basis for members to carry out democratic decision-making and as the restriction for the organization to provide profit allocation. Thus, farmers can realize their rights on the collective land in a more reliable manner. To a certain extent, the lack of a normative system of membership rights in laws is a great pity for the protection of farmers’ rights in the collective.

6.2. Integrating Excellent Rural Traditions into Democratic Autonomy

Democratic autonomy is the key for farmers to realize individual interests from the collective interests. The system of villagers’ autonomy is a pioneering undertaking in rural areas and is often introduced to mediate civil disputes and maintain social order. The operation of collective land ownership is different from public affairs, as it concerns diverse and complicated economic conflicts more. The general principle of democratic autonomy is the “majority rule”, which requires a certain percentage of participating members to approve. There is not too much difficulty in meeting the condition in terms of the procedure. However, it is not easy to arrive at a fair, reasonable and efficient resolution. Substantive justice rather than procedure justice is likely to be more difficult to achieve. At this time, excellent rural traditions, such as village rules, customs and culture, family traditions and ancestral instructions, are important local rules that have been acknowledged by members for a long time. They are advised to integrate them into democratic autonomy to mediate the contradiction among members in a gentle manner. It may be beneficial for promoting collective action more effectively. The county sages (such as college graduates, agricultural science and technology personnel, private entrepreneurs and elites from all walks of life who once lived here), who are familiar with local traditions and have wider learning, are easy to gain recognition from members in the collective. In promoting the collective action to achieve the common will, more attention should be paid to the importance of rural tradition and county sages.

It needs to be mentioned that democratic autonomy should be in the elastic space outside the rigid boundary. The so-called rigid boundary is determined by laws and regulations. Laws and regulations need to make sure what matters cannot be left to democratic autonomy, as they are the bottom line of farmers’ rights.

6.3. Improving the Governance Structure of Collective Organization

The collective organization as a special legal person has been acknowledged in law, while its governance structure is not specified. It is worth exploring the particularity of its governance structure compared with the general legal person represented by the corporation. Inner organs and liability property should be clarified. Generally speaking, the inner organs of the collective organization do not necessarily follow the mode of “shareholders’ meeting, council and board of directors” by the corporation, as the collective organization is not formed by the voluntary investment of its members and does not have to follow the governance model of capital balance. What needs to be explained is that the collective organization we term as community-based cooperatives exists mainly for the operation of collective land ownership, and for many economically undeveloped rural areas, there is no need to conduct stock cooperation which follows the governance mode of the corporation, as the collective land itself is not suitable for a shareholding reform. Therefore, for collective organization, farmers as its members play the role of decision-making and supervision, and having an internal executive body such as the council is sufficient. As for the economically-developed rural areas, it is entirely possible to set up another professional cooperative (mainly for other business assets on the collective land) that follows the governance mode of corporation.

As for the liability property, collective land ownership, as public property rights, cannot be used to pay off debts, no matter to what extent the rural land market-oriented reform develops. This is the bottom line of the rural land system, which needs to be strictly protected.

The Rural Collective Economic Organization Law (draft) basically refers to the governance mode of farmers’ specialized cooperatives, which does not highlight the uniqueness of the collective organization as a special legal person, and especially does not pay enough attention to the inner organs and liability property.

6.4. Innovations and Limitations of the Study

The innovation of this study is to deconstruct the inner structure of the village collective from three levels, namely, the members of the collective, the collective composed by the members and the collective organization, and to understand that the relations among the three on the collective land follows the unification of the history, the reality and the logic. The “one axis–two stages” explanatory framework we raise is also the theoretical portrayal of the operation mechanism of the collective land ownership. The contribution can be summarized as two main aspects. First, we refocus academic attention to the collective land ownership on the subject system which is the basis of property rights. The village collective as the owner of the collective land ownership has long been neglected for conducting an in-depth analysis. This is due to the concentration on rural land use efficiency caused by the overheated collective land reform in the academic cycle, while the systematic discussion on the subject of collective land ownership is rare in the literature. Second, we criticize the “atomized individual” assumption in the laws for its failure to regulate the operation of collective land ownership. Through the historical observation of the development of rural collective land ownership and the long field experience of what has happened in rural China, we raise an explanatory framework that can be employed to enrich the theory of the collective land ownership. Especially, we term the membership rights, the autonomous rights and the special legal person ownership and analysis as their functions, respectively, which can promote the enrichment of legal rights’ types in different sectors.

However, we should admit that there are still some shortcomings that need to be supplemented in further research. First, we just provide an explanatory framework of how collective land ownership operates, while we fail to give a more systematic suggestion for the betterment of the rural land system. Second, we are limited by the availability of data concerning the performance of farmers’ realizing their rights on the collective land; thereby, the econometric analysis cannot be conducted. Future studies can be improved in these two aspects.

7. Conclusions

We first clarify the methodology of this study which combines the historic analysis, the logic analysis and the normative analysis, briefly review the formation of the collective land ownership and then, propose the “one axis–two stages” explanatory framework to finally employ it to analyze how farmers realize their rights on the collective land. The main conclusions are as follows.

Firstly, in essence, the transformation from private ownership to collective ownership of the rural land in China can be explained as the qualitative division of rural land rights between the members and the organization. Prompted by the public power of the state, each farmer as the owner of the rural land has to transfer part of their rights to the organization when associating, meanwhile each one still reserves part of their rights. The rights transferred to the organization are termed as the special legal person ownership, by which the organization fulfills the obligation to allocate resources and income to its members and carries out operation activities in the land market, while the rights reserved by each farmer are called membership rights, which are exercised by farmers to claim rights to the collective and restrict the behavior of the organization. The rights enjoyed by all members on the basis of the membership rights are the autonomous rights, which function in the democratic decision-making and provide the criteria for the organization to fulfill their obligations. The formation of the collective will and the execution of the collective will is the relatively separated operation process; the former is a kind of collective action conducted by all members in democratic decision-making, and the latter is the rural land value-added process in the market conducted by the organization.

Secondly, in general, there are two different approaches for farmers to realize their rights on the collective land. As for the right to utilize the public infrastructure on the collective land, farmers as the members can enjoy it in a reasonable way, which is the process of exercising membership rights. In terms of the property rights, such as the farmland contractual operating right or the distribution right of the collective income, as it concerns the common interests of all members, farmers as members have to claim their rights to the collective by indicating their intention to participate in the allocation, and then participate in decision-making to determine the allocation scheme in a fair and reasonable way by exercising the autonomous rights; the organization implements the scheme by exercising special legal person ownership. Obviously, the latter one concerns the clear conflicts of interests and needs to be distributed by the democratic decision. If the farmers’ rights are infringed, there are also two types of relief routes for them. If their rights are infringed by other members or by the organization in allocating the resources and the income, farmers can choose to negotiate with other members or the organization in a proper way. If their rights are infringed by the organization when it carries out an operation activity in the land market, farmers can obtain compensation from the organization, and the compensation standard is determined by the decision-making.