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Since the new century, the villagers towards autonomy is constantly deepening. Long-term studies of Villagers Professor Xu Yong summing Chinese Villagers building, said: "The villagers autonomous organization construction has been basically completed, the beginning of a reconstruction achieved through the organization of the democratic rights of the villagers a new historical period. Villagers just rural way of governance, but also the country to give farmers an inalienable, non-negotiable fundamental rights. "① Indeed, with the deepening of village self-government practice, the villagers autonomy issues become increasingly prominent, as villagers' autonomy in Legal Issues An important basic issues. Analysis from the legal autonomy of villagers, to clarify its essence, is to study the basic legal issues Villagers propositions and further research legal issues Villagers important prerequisite, but also to better protect the villagers autonomy basic requirements.
新世纪以来，村民自治正在不断走向深化。长期研究我国村民自治的徐勇教授在总结中国村民自治的建设时指出：“村民自治的组织建设已基本完成，开始进入一个通过组织重建实现村民民主权利的新的历史时期。村民自治不仅仅是国家治理乡村的一种方式，同时也是国家赋予农民一项不可剥夺、不可转让的基本权利。”①的确，随着村民自治实践的深化，村民自治权问题日益凸显，成为村民自治法律问题研究中的一个重要的基础性问题。从法理上解析村民自治权，弄清楚其本质，是研究村民自治法律问题的基础命题和进一步开展村民自治法律问题研究的重要前提，也是更好保障村民自治权的基本要求。
One, the villagers autonomy and legal nature of the content http://www.ukassignment.org/flessaydx/
一、村民自治权的内涵与法律性质
For the villagers autonomy connotation, no consensus of academic discourse, there have been divergent situation. Such as Zhang Xiu, Zhang Jingfeng that "villagers autonomy is legally recognized statutory villagers enjoy self-determination in a democratic manner and handle public affairs and public welfare villages an autonomous grassroots democratic rights." Hao Hongmei that "the villagers of village autonomy is through autonomous organization and dealt with the villagers of village affairs stakeholder rights of autonomy and self-government powers." Pan Jiawei Zhou Yin day that "the villager autonomy is through some form of organized regional mass organizations based on national legislation within a certain range of powers of the management of public affairs." Wang Xu width that "the villagers villagers autonomy within the national legal order of the social contract in the form of joint exercise of the proceedings of the villagers self-government affairs, decision-making, management and oversight powers, the rights of the villagers set" ②. From the above discussion of the meaning of the villagers autonomy is not difficult to find, the current scholars mainly from the villagers' autonomy nature, content and other aspects of the subject and to define its connotation. However, these statements can be seen, many scholars do not distinguish between good and clear what is right or villager autonomy of the most basic questions of power. In fact, the villagers autonomy is "right" or "power" of the legal nature of the problem is to define the villager autonomy and in-depth study of villagers autonomy must first answer a crucial question. ③ Villagers Villagers autonomy is the core problem. At present China's Constitution and laws subject to the exercise of autonomy of villagers, conditions and content are less involved, there is no clear legal nature of village autonomy, that is, whether the villagers autonomy is a national authority or a public authority, is a legal right, is not very clear. Villagers Autonomy on the legal nature of the problem in academia there is great controversy, there are three main representative view.
有关村民自治权的内涵，我国学术界尚未达成一致的论述，出现了众说纷纭的状况。如张广修、张景峰认为，“村民自治权是法律确认的法定村村民享有的以民主方式自我决定和处理村庄公共事务和公益事业的一种基层自治民主权利”。郝红梅认为，“村民自治权是我国村民通过村民自治组织依法处理与村民利益相关的村内事务的自治权利和自治权力”。潘嘉玮、周贤日认为，“村民自治权是通过一定形式组织起来的区域性群众组织依据国家立法对一定范围内的公共事务进行管理的权力”。王旭宽认为，“村民自治权是村民在国家法律范围内，以社会契约的形式共同行使对村民自治事务的议事权、决策权、管理权、监督权，是村民权利的集合”②。从上述对村民自治权涵义的论述中不难发现，当前学者们主要是从村民自治权的性质、主体与内容等方面来界定其内涵的。但从这些表述也可以看出，很多学者没有很好地区分和明确村民自治权究竟是权利还是权力这一最基本问题。实际上，村民自治权是“权利”还是“权力”的法律性质问题是界定村民自治权以及深入研究村民自治权首先要回答的一个关键性问题。③村民自治的核心是村民自治权问题。目前我国宪法和法律对行使村民自治权的主体、条件和内容都较少涉及，并没有从法律上明确村民自治权的性质，也就是说，村民自治权究竟是一种国家权力或公共权力，还是一种法律权利，并不是十分清晰的。关于村民自治权的法律性质问题在学术界也存在很大的争议，主要存在三种代表性的观点。
The first view is right to say, advocated autonomy of villagers autonomy is a right, not power.
第一种观点是权利说，主张村民自治权是一种自治权利，而不是权力。
Many scholars hold this view, such as Wang Zhi, Wang Yu, Zhang Xiu and Zhang Jingfeng, Haoyao Wu et al. Wang Yu believes that "villager autonomy is a right to autonomy, rather than autonomy." Villagers Autonomy is the right kind of grass-roots democracy and autonomy, a statutory nature. Villagers claimed there are two, one is the villagers can directly participate in the exercise of personal autonomy rights, such as rights of villagers to participate in village meetings, village election of village committee members were elected to the rights and the rights of the village committee, village committee work supervision by the villagers rights, etc.; the other is not directly involved in the exercise of individual villagers, and villagers' committee or villagers must meetings, village representatives meeting to exercise the rights of autonomy, such as the village economy, security, and cultural life, crop production planning and other relevant villagers interests of the major issues must pass village meetings, village representatives or villagers' committee decision. But the one hand, the villagers Wang Yu advocated autonomy rather than just a right to self-autonomy, on the other hand he also said he recognized that the autonomy of villagers in the second type for the villagers, the public authority has a certain nature, ④ shows that their views are self-contradictory. Another scholar from the perspective of public power and private rights to analyze the cognitive autonomy of villagers, the villagers autonomy that belong to private rights, private rights needed relief. ⑤
Right to say that the latest research results from the jurisprudence of Jilin University and Wuhan University doctoral student, Dr. Haoyao Wu Yang made. The former, in its 2009 doctoral thesis completed, the villagers autonomy provisions in the law is a benefit of the villagers, and villagers' autonomy itself does not include the country's coercive power factor, the villagers autonomy rights belong implementation mechanism, rather than the power operating mechanism, based on this, he concluded: Villagers Autonomy is a right, rather than power. ⑥ The latter is considered as the main body of villager autonomy is the "village" as an autonomous unit of all the villagers, the villagers have the origin of autonomy, autonomy and "profits" sex, for these reasons, the villagers should be the nature of autonomy rights, rather than power. Although the villagers' committee commissioned by all the villagers exercise some degree of autonomy, but the villagers do not have the autonomy of the Commission exercised public power in nature. Autonomy exercised by the village committee commissioned by the villagers to exercise, even if its exercise, it must reflect the will of the villagers to the villagers' interests. The village committee in the exercise of autonomy can not take coercive measures, it relies on the exercise of the authority from the rural communities that villagers its identity, rather than the organization's own authority, but not with the national authority. If the villagers 'committee in the exercise of autonomy is defined as the public authority will lead to villagers' autonomy from its autonomous nature, and even lead to the village committee to impose their will on the villagers, eventually leading to the Chief of village self-government organizations, and thus ultimately lead to Villagers Right alienated state power. Therefore, the nature of the villagers autonomy is defined as the right to autonomy enjoyed by the villagers, the villagers autonomy essential attribute of expression. ⑦
The second view is the power that advocates autonomy is a village within the village's public administrative powers. Young into the study pointed out that, "on the nature of village autonomy, most scholars believe that the villagers autonomy is autonomy" ⑧. However, according to our analysis, the autonomy of the "power" mainly seen on national regional autonomy and self-government and other local autonomy SAR analysis, holding power in the field of villager autonomy scholars in fact does not say much, and mainly focus on the 1990s, the terms of reference for the discussion of village self-government authorities to use "power." In the 21st century, "power" is more representative Patrick Poon and Zhou Yin day, they believe that the villagers autonomy was "some form of organized through regional mass organizations based on national legislation on a range of public affairs management authority. " But the surprise is that they are in the same book, he also considered the villagers autonomy is "the villagers a right." ⑨ see its point of view is self-contradictory and did not really grasp the essence of village autonomy. Shen Kui village committee believes that the exercise of the powers of a quasi-governmental organization. ⑩
Power said the latest research made by Peking University doctoral Tian Feilong. He pointed out that decentralized constitutional and administrative law perspective, the villager autonomy ought to "democratic autonomy", but on the reunification of public law, the villager autonomy belong to a kind of "social justice powers" that " Villagers Autonomy easily be interpreted as a Unified Public Law social justice powers beyond the understanding of Constitutional and Administrative Law of the decentralized perspective to the decentralization rather than stand affirmed the country's sovereignty beyond the power of social autonomy nature of the villagers' autonomy only to determine the social nature of public power, we can understand why 'mentoring relationships' interpretation was reasonable and scientific system of protection should be given "(11). So he came to a preliminary conclusion: the vision of a unified public law, the villager autonomy is a social public authority, and not just the "democratic autonomy"; villager autonomy in external relations, the so-called "mentoring relationship" expressed in the national public power and social relations between the powers of public authority issues the villagers autonomy in internal relations, between the village and the villagers is an autonomous power relations.
A third view is that the rights and powers of the dual attributes that advocates autonomy of villagers have rights and powers of the dual attributes. This view is Dr. Cui Zhiyou representative character. He believes that on the villagers concerned, it has a right to property; respect villagers' committee is concerned, it has the power properties. From the set of organs of state power, the most grass-roots organs of state power is a township government, township following Villagers community autonomy. Therefore, the villagers autonomy is not a "state power" range. But in terms of villager autonomy, autonomy within the community or village, it is an autonomous body organs of the management or conduct of public affairs and public welfare village management rights, the management authority are binding for each villager. Outside the community or village, it is excluded from government agencies intervene in matters Villagers legal rights. Therefore, the villagers autonomy should be a dual nature. Judging from the source, the villagers Villagers Autonomy is the main law gives a right, while the villagers self-government body in the exercise of autonomy of villagers, the villagers' autonomy constitute the main body of each one of the villagers, it is a kind of internal management of color public power, but this power can only Villagers public body effectively, but not the villagers outside the legal relationship between the local government body produces legal authority effect. (12) Dr. He Zezhong also holds the dual attributes said, but he believes that the villagers of village autonomy is both a kind of "autonomy", and the villagers as a "right to autonomy" is unique to the villagers as a "mandate." Enjoyment and exercise of the right process, the right has become a kind of power, such as the villagers to vote, is both a right, but also a power to vote and be elected villagers Lee, another removal power. (13) In addition, Zhang Yinghong, also believes that "autonomy is a kind of power, but also a right with respect to the local governments, the autonomy is a kind of power; relative to citizen participation in community activities, it is a right "(14). In recent years, dual attributes that they have got a lot of people agree that getting there is the potential to become Tong said.
We believe that the legal nature of villager autonomy should look into two villagers autonomy should have the right and power of the dual attributes. On the one hand, the villagers autonomy should include the individual rights of the villagers, the villagers as individuals entitled to democratic elections, democratic decision making, democratic management and democratic supervision rights of autonomy. This point has been accepted by most scholars, hereby not repeat them here. On the other hand, the villagers autonomy also includes groups of villagers' self-government organizational power. Villagers are essentially within the state and society, decentralization, in accordance with the new public management theory and governance theory, autonomous organization as a village public governance body, and governmental organizations, industry associations and other non-governmental organizations together constitute society, governance, conduct village public affairs and public welfare, exercise a certain degree of social affairs of the public authority. In the new public management and governance theory sight, the legal theory should also actively pursue research paradigm shift confront this process of decentralization of state and society emerging issues. Currently, the legal community has been basically to recognize the social organizations and NGOs such as the fact that the government share of public authority, NGO access to public power has become a pass said. We believe that the rural and urban communities, autonomous organization autonomous organization, its autonomy enjoyed enjoyed autonomy and social groups have some similarities in nature, that are decentralized state and society, have a certain The public nature and autonomy, village should be a quasi-public administrative organization, the village committee is a quasi-public exercise of executive powers. Therefore, the villagers self-government organizations to enjoy autonomy, a villager autonomy including the public authority property, when no doubt. Based on the villagers' autonomy nature of these analyzes, we believe that the villagers autonomy connotation should refer to a certain area of rural villagers and rural grassroots autonomous organizations in exercising the rights and autonomy of the village public affairs and the management of public welfare undertakings power.
Second, the main body of the villagers autonomy
Autonomy subject is a core element of the villagers autonomy. But what about the villagers' autonomy should include what the subject, both in theory and in reality, there is considerable controversy. In this regard, there are four main current academic theories.
First, the individual subject said. The view is that the main body of the villagers villagers autonomy of individuals, the main emphasis Villagers microscopic, restrictive and absolute. How Ze believes that the villagers' autonomy, autonomy is the mainstay of the villagers. Zhang Xiu, Zhang Jingfeng holds the same view. Pan Jiawei Zhou Yin Day also pointed out that "the villagers autonomy is an individual sexual rights and it is each 'village' have the right to enjoy, rather than a collective, group of rights' (15). Needless to say, this view is the mainstay of the villagers villagers autonomy of individuals, rather than the village collective.
Second is to organize the body said. The idea that essentially is to protect the villagers' autonomy autonomy village, the village committee is the "Villagers" subject, "Village Committee Organization Law" is to implement the autonomy of the village core. Village should become a veritable legal person, it is the villagers' self-government organization, the nature of a village self-government bodies. (16) There are some scholars believe that the essence is the village Villagers in units of "Village Autonomy" in the law, the autonomy of the "village" should be "villager autonomy" of the subject. Because, whether from the "Village Committee Organization Law," or from the practical experience of village self-government perspective, legally protected, "villager autonomy" is essentially to protect the villagers of village-based collective exercise of autonomy, while the villagers personally unable to exercise autonomy. (17) shows that this part of the main body of scholars advocate villager autonomy is autonomous organization.
Three is a collection of body said. The view is that the subject is neither the villagers villagers autonomy of individuals, nor is the village committee, but all the villagers collective autonomy, emphasizing the main macro villager autonomy, general relativity. This view is seen in the Legislative Affairs Office of Political Division editor of the "Village Committee Organization Law speech," a book, (18) but it seems to be only a handful of academics, only Dr. Hao Yaowu that autonomy is the main village all the villagers. (19)
Four is a composite body said. Many scholars believe that the villagers' autonomy is more than a subject of rights, both individual villagers individuals, including autonomous organization. But what exactly is the villagers self-government organizations have different perspectives. Joe Yao Zhang believes Villagers Villagers covers two aspects of village autonomy, autonomy of villagers and village self-government of unity. Its autonomous body are local villagers and their powers according to the law is not violated. Zhang Xiu, Zhang Jingfeng that the autonomy of the body, including the villagers villagers, village representatives and village committees, village autonomy is exercised by the general body of villagers, the villagers on behalf of the villagers autonomy exercised by the special body, the village committee is the main village autonomy exercised by proxy . Choi Ji-woo is that because "the law on the introduction of villager autonomy empowerment, including not only the sense of community autonomy, but also the way the exercise of autonomy, individual rights enjoyed by each villager" and therefore subject of rights Villagers both villagers individuals, including Villagers body organs. (20) In addition, some related to specific subject can become the main problem of the autonomy of villagers, one is not in the village accounts, but long-term foreign workers living in the village can become autonomous body, the other is the residence in village, but the long-term absence village autonomy of villagers living body can become. On these issues, theory and practice have long disputed until 2010, "Village Committee Organization Law" revision, controversy was gradually subsided.
We believe that, according to the aforementioned definition of the concept of autonomy of the villagers and nature of the analysis is not difficult to find, the villagers autonomy should include both the subject as an individual villagers, including autonomous organization. If you deny the autonomy of villagers villagers individual dominant position, it can not explain the villagers enjoy the right to vote, right of recall and other democratic rights, is extremely unfavorable to the rights of the rural villagers' autonomy guaranteed. If you deny the autonomous organization of the villagers autonomy dominant position, it can not explain the village meetings, village representatives, village committees and village groups, etc. autonomous organization in the village self-government activities in the position and powers of local governments to easily lead the villagers self-government activities illegal interference, autonomous organization will become their "one leg." Villagers decentralization as a product of the state and society, and its various rights (force) were the subject of autonomy enjoyed corresponding rights and autonomy, internal democratic self-government, public affairs and democratic management of village public welfare, foreign to carry out certain activities, receive government guidance and supervision of autonomy and resist all kinds against improper or illegal.
Third, the content of the villagers autonomy
In essence, the villagers' autonomy is kind of a bundle of rights, the rights of a variety of aggregates. According to "Village Committee Organization Law" provisions of Article II: "the village committee of the villagers self-management, self-education, self-service grass-roots mass self-government organizations, democratic elections, democratic decision making, democratic management and democratic supervision." Accordingly, Traditionally, many scholars have summarized the contents of four villagers autonomy rights, namely the right to vote democratic, democratic decision-making, democratic management rights, democratic supervision. This generalization is obviously not comprehensive and in-depth to reveal the true face of villager autonomy. To overcome this right content classification simplistic defects, some researchers this issue to explore the multi-dimensional. If Jiao Yanna that villagers individual autonomy including the right to exercise individual and collective rights exercised jointly. The former includes the villagers enjoy beneficial and equitable access to land use rights and management rights, the right to review the right to information as well as supervision and the right to obtain relief, the latter including the right to vote and stand for election, democratic decision-making, democratic management and democratic rights supervise four content. (21) Haoyao Wu believes that it villager autonomy view, should come from the following three aspects of cognitive and study its contents, to divide its pedigree: the first is the overall interests of the villagers, especially the villagers are closely related to the economic interests of rights or the rights group, you can call directly villagers autonomy, including the right to vote, decision-making, management rights, participation and right to know. This is the villagers themselves for their own rights group. The second is to protect the rights of autonomy directly or rights groups, can call for the protection of village autonomy, including supervision and removal. This is the villagers themselves right for the village population. The third is in the modern era appears under the new situation of the villagers autonomy new content. (22)
We believe that the villagers autonomy that includes a series of specific rights (powers), including a bundle of rights, are a number of specific rights (powers) collections. Villager autonomy can be classified in many ways, the specific content of both traditional people think of the four democratic rights, but also includes such income rights, management rights and other rights to certain economic autonomy (force).
1 vote. Villager autonomy in villagers' right to vote is legally entitled to elect members of the village committee, village representatives on behalf of the rights and the village team. In essence, the village village committee election of members entitled to vote with the villagers villagers as citizens to participate in the election of national democratic political level enjoyed by citizens of the right to vote is the same, are based on the villagers' right to vote as citizens should have generated. From the perspective of the constitutional system of any person of such rights is inalienable statutory rights. However, the villagers the right to vote and civil right to vote is also a great difference. Villagers enjoyed by citizens of national democratic political dimension refers to the villagers the right to vote as citizens legally entitled to elect representatives of state authorities or the leaders of certain countries leading organs of a basic political rights; villager autonomy of villagers the right to vote is Villagers are legally entitled to organize the election of the members of villagers' autonomy autonomy of a right. (23) in accordance with existing laws, the implementation of village elections fair, just and open manner, all of the villagers 18 years of age, as long as political rights, the right to vote. Villagers vote can also derive a series of other rights, including the recognition of the right, the right to nominate (recommend right), stand for election, voting rights, right of recall and so on. (24) 2. Decisions. Villager autonomy in decision-making power is the vital interests of the villagers for the villagers involved matters of democratic discussion by the villagers, the villagers meeting or villager representatives meeting at the views of the majority decision of a right to autonomy. Decision-making powers in a way is also a right to participate and express the right, but the focus of decision-making power on the one hand characterized by the villagers to participate in order to post your own comments or suggestions, comments or suggestions which have the qualifications, opportunities and paths; the other hand, focus on characterization of the villagers to decide village affairs. In accordance with existing laws, the villagers basic form of decision-making power is exercised by the village more than 18 years convened consisting of village meetings and village by the villagers and village committee members composed of representatives of village representatives. Convene village meetings, village should have more than 18 years a majority of the villagers to participate in, or have more than two thirds of the households in the village representatives, the decision shall be subject to the consent of a majority of Council staff. Higher number or live in scattered villages, can be set up village representatives, village meetings to discuss and decide matters authorized. More than two thirds of village representatives who participated in the composition before convening the decision shall be subject to the consent of a majority of staff will be. For matters related to the vital interests of the villagers, the villagers must be made by the villagers meeting or conference meeting to discuss authorized representatives of villagers decided before processing. Decision-making powers specifically including the right to know, the right to propose and decide on the right such as the right content.
3 management. Villager autonomy in the management right is enjoyed mainly by the villagers village inside the village exercised on behalf of the public affairs or participate in public welfare undertakings, the management of an autonomy. Autonomous organization on the village social affairs, economic development, management of personal conduct, to follow the views of the villagers, the villagers in the management process to participate in absorption and seriously listen to different views of the villagers. According to the Constitution, laws and regulations as well as national policies, combined with the actual situation in the village, the villagers meeting developed villager autonomy statutes and pacts, the rights and obligations of the villagers, village-level relationship between the various organizations and working procedures, as well as economic management, social security, the village folk tradition, marriage and family, public health, family planning and other requirements, provisions clearly understand that, pursuant to manage. Democratic management of village autonomy as the kind also has external validity, within the law against illegal local government intervention and control. Haoyao Wu believes that the villagers can be divided into the management of the administration and procedure of the Statute of management rights. The so-called management rights of Procedure refers to the villagers through the direct participation of villagers meeting or villager representatives meeting to make comments or suggestions village affairs and participate in the direct management of certain matters in the past. This management authority is dynamic, can be called a dynamic management. The so-called management rights statute refers to the villagers through the village administration involved in the development Villagers constitution or statute, such as pacts, etc., to achieve the village affairs. The villagers are not directly involved in the management of village affairs specific management, but mainly through the development of protocol to achieve the management, performance-based management rules and regulations, can be viewed as a static management. (25) This view has its own rationale.
4. Supervise. Villagers Autonomy refers to the supervision by the villagers on the village committee's work and the implementation of village affairs and democratic supervision rights of autonomy. Democratic supervision is part of the protection of villagers' autonomy, it is to recall system, work reporting system and democratic evaluation, system of village affairs and economic responsibility auditing system is mainly embodied form of supervision and restraint village cadres and village work behavior . Only effective democratic supervision, in order to restrict the behavior of village committee members; otherwise democratic election, democratic decision-making and democratic management is likely to be empty, a person or a few people's will or behavior. Supervision specifically including the right to know, to consider and comment on the right to criticize the right to recommend and other rights.
5. Economic autonomy. Villager autonomy in economic autonomy refers to the villagers, the village collective economic organizations and autonomous organization legally entitled to economic activities in the collective self-management, self-service, self-financing rights. Villagers Autonomy is mainly the democratic rights of the villagers are legally entitled to, but its content also includes a range of economic autonomy, which is in the "Village Committee Organization Law" Article VIII provisions concerning the functions of the village economy has been firmly regulations. After the implementation of the household contract responsibility system in rural areas, farmers, villagers, the village committee, the village collective economic organizations have other certain economic rights, which the body can follow the relevant rules Villagers operate and enjoy the village collective land and other property management earnings. Economic autonomy specifically including the right to contract, contract rights, beneficial, business and other rights.
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