论集体土地所有权的缺陷及其完善措施

本文以农村经济市场化为背景 ,总结和分析了我国现行集体土地所有权存在的缺陷 ,提出了完善集体土地所有权的基本思路以及明确界定农民集体组织、完善土地征用制度并赋予村农民集体土地取回权等具体的集体土地所有权完善措施。     

Adivasiness as Caste Expression and Land Rights Claim-Making in Central-Eastern India

ABSTRACT

The adivasi population represents a special case in India’s new land wars. Strong individual and community rights to agricultural and forest lands have been enacted for this group based on notions of adivasi identities as primeval, but without linking these to economic and political influence. This article interrogates the adivasi land question seen through a caste lens. It does so via case studies in two states to understand the ways in which adivasi identity can be mobilised for its instrumental value and used to demand land rights. In Andhra Pradesh, the Supreme Court’s Samatha Judgement has prevented virtually all private mining activities. In Jharkhand, however, similar legislation is seen to be trumped by the national Coal Bearing Areas Act, as well as by former and current land acquisition acts that allow industrial land claims to take precedence over identity-based ones. Available evidence indicates the challenges involved in bringing support for land rights that are premised on a supposedly unchanging adivasi identity when these rights go against dominant interests. This circumstance serves to highlight the possibilities present in caste analysis to understand the plight of adivasis, despite their usually distinct treatment in scholarly analyses.     

The Politics of Caste in India’s New Land Wars

ABSTRACT

In this article we introduce the special issue through framing the debate on the role of caste in India’s current land wars. We draw attention to how caste consistently mediates land transfers in present day India by pre-empting, undermining, or fuelling processes of social contestation, as well as the ways in which land claims in turn shape realigned or reimagined caste identities. Based on this, we make three main arguments. The first and most obvious one is that in contemporary conflicts over land, caste matters in evolving ways that deserve attention. Second, we argue that caste and land are recursively linked categories that are produced and reproduced in continuous interaction, even as multi-scalar political economies (re)shape them. And third, that different registers of caste are articulated by different social groups in more or less overt ways as they stake often competing claims to land.     

Zimbabwe’s transition overload: an interpretation

ABSTRACT

The article argues that to understand the troubled history of Zimbabwe we have to pay attention to the multiple and incomplete ‘transitions’ that the country underwent within three decades. Each of these transitions was probably inevitable and the trajectory they followed may be the right one for each of the transitions. However, the transitions in Zimbabwe were intertwined in a not always mutually supportive way. Indeed, we also argue that eventually, Zimbabwe suffered from a ‘transition overload’ as the many transitions undermined or confounded each other. The article is also a caution against the preoccupation of individuals in Zimbabwean history. Finally, there are some lessons for post-conflict countries that are often faced with wide-ranging agenda that often include externally imposed items.     

The judiciary and post-election conflict resolution and democratic consolidation in Ghana’s Fourth Republic

ABSTRACT

In recent times most elections in Africa have been fraught with post-elections conflicts that have had dire consequences on citizens. Kenya, Ivory Coast and Zimbabwe are few of these cases. This makes post-election conflict resolution a very important aspect of the electoral process deserving enormous attention. However, extant literature has not accorded it the needed attention. It is as a result of this, that this study investigates the nature of post-election conflict resolution in Ghana’s Fourth Republic. The study, based on a qualitative case study approach, found among others that, the Courts have been instrumental in consolidating democracy in Ghana, and stakeholders are devotedly operating within the legal framework governing elections, despite logistical, law enforcement and justice delivery challenges. The study being conscious of the progress made over the years concludes that, where democratic institutions are consolidating, the use of unconventional means to resolve conflicts is usually not an option.     

土地犯罪研究

土地犯罪的立法缘起于经济迅猛发展之下的深刻土地危机及保护土地的特殊需要。土地资源是人类生产和生活不可替代的物质基础,是国脉所系,民生所系的“生命线”。土地犯罪是对社会根本利益的侵犯,是对我们生命线的破坏。惩治土地犯罪是现实的呼唤,历史的必然。修订后的《刑法》及《土地管理法》增设了土地犯罪及其刑事责任的规定,完善了土地法律责任体系,对合理利用和有效保护我们稀缺的土地资源具有不可估量的现实意义,现实迫切需要深化土地犯罪的理论研究,以指导法律的准确运用。     

土地用途管制模式的立法转变

我国现行土地用途行政管制模式出现“制度失灵”，公法与私法规范结合的激励性管制应成为行政管制的替代模式。国际上土地用途管制改革已出现了总量管制与弹性管制、社区赋权、规划协议等激励性管制的实证样本，规划的不确定性理论、规划权利理论、管制协商理论为新型管制做出了法学解释。激励性土地用途管制的本质是模仿市场机制的私人自我管制。在我国，国家本位的衰落，土地市场多元利益的并存与竞争，迫切需要以激励性管制替代制度成本过高的传统行政管制。土地用途管制改革的基本路径是，划分行政干预与市场配置土地资源的法定边界，合理嵌入管制的私法规范。     

论我国农垦橡胶产业土地制度的完善——以海南农垦为例

我国农垦中的橡胶产业改革已经进行多年,取得了很大成绩,但还存在着一定的问题。本文以海南农垦中的橡胶产业土地制度改革为例,对橡胶土地制度存在的问题进行剖析。以期进一步完善橡胶产业土地制度,实现土地资源的有效配置。     

共同诉讼抑或群体诉讼——评我国代表人诉讼的性质

我国《民事诉讼法》司法解释将该法第54条规定的代表人诉讼界定为共同诉讼是值得商榷的。如果按此推论,该法第55条确立的代表人诉讼又处于“休眠”状态的情况下,我国就基本上没有什么群体诉讼了,这显然不符合实际情况,也与法院每年处理几十万件群体诉讼案件的统计数字不符。从其产生所适应的条件、所借鉴的国外同类制度以及自身的特点和功能来看,我国《民事诉讼法》确立的两种代表人诉讼均已突破了共同诉讼的范畴,在性质上都应属于单一诉讼和共同诉讼之外的第三种诉讼形式——群体诉讼。