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关于土地承包经营权入股合作社的法律性质,理论界尚存物权流转说和债权流转说的争议。由于物权流转说无法保证入股农户基于土地承包经营权的社会保障权和分享土地增值收益的最大化,实践中大多数规范性文件以债权流转说为立法基础。但是,债权流转说却面临着法人财产独立、虚假出资等传统商法理论的诘问。因此,需要对债权流转说进行修正和补充,即明确规定“土地承包经营权出资额不计入合作社出资总额,仅计作分享利润和净资产、承担损失的依据”。这样不仅可以协调物权流转说与债权流转说的冲突,为农地入股农民专业合作社具体法律制度的设计奠定基础,而且还有助于正确认识合作社的产权性质,丰富并完善合作社社员的责任形态。
On the legal nature of the land contractual management right of the stock cooperatives, theory of real estate transfer of the remaining claims and claims of the dispute over the transfer of claims. Since the circulation of property rights can not guarantee that the peasant households based on land can enjoy the right to social security based on the land contractual management right and maximize the value-added income from land sharing, most of the normative documents in practice take the transfer of claims as the legislative basis. However, the theory of creditor’s rights transfer is confronted with the traditional theory of commercial law such as the independence of legal person’s property and false investment. Therefore, it is necessary to amend and supplement the claims circulation, which explicitly stipulates that “the capital contribution of the land contractual management right shall not be included in the total amount of investment in the cooperative and shall only be counted as the basis for sharing profits and net assets and assuming losses”. This will not only coordinate the conflict between the transfer of claims and the transfer of claims, which will lay the foundation for the design of the specific legal system of farmer cooperatives, but also help to correctly understand the nature of the property rights of cooperatives, enrich and perfect the responsibility patterns of cooperative members .