村委会状告镇政府土地承包合同纠纷代理记实

——周显根律师

昔日滩涂 今日宝地

三门县小雄镇下兰塘海涂，从1972年开始由政府投资进行围垦，由于海潮和台风的侵入，围垦的滩涂正常倒塌；在围垦过程中，当地百姓投入了大量的劳力，对此政府均以计分形式给予补偿。1983年11月，原三门县小雄区公所为加强对围垦滩涂的管理，把已围垦的滩涂划分给区公所所属的吴都乡、山场乡进行管理。1983年下半年，山场乡把下兰塘围垦滩涂发包给宁海县郭某等村民承包，承包期至1986年8月；自1986年8月开始，山场乡把下兰塘滩涂交由各村承包使用至1997年11月。此后，部分村把滩涂承包给他人种植西瓜等农作物，每亩承包费约计170元许。自下兰塘滩涂围垦以来，一直种植棉花、西瓜等农作物；1999年11月，小雄镇人民政府为调整农业产业结构，制定了下兰塘涂地开发改造计划，指出因下兰塘周边经济条件和自然条件的限制，蓄淡抗旱能力差，排涝防涝设施不完善，无纳潮引水体系，群众种植水平低下；建议改为养殖业，以克服抗旱、排涝、纳潮差的三大缺陷。同时三门县人民政府也自1999年开始，不断制定下发了对滩涂进行改种养项目管理有关政策文件。台州市金潮渔业发展有限公司（下称金潮公司）为了开发下兰塘滩涂，与三门县小雄镇人民政府达成了开发意向。在此情况下，三门县小雄镇人民政府2000年9月19日与下兰塘滩涂有关的十三个行政村举行签字仪式，把原属各村承包使用的土地交由镇政府统一对外发包，价格每亩250元，期限为二十五年。同年11月10日，镇政府以同样的价格、期限把上述各村约计2660亩土地发包给金潮公司。金潮公司与镇压政府签订合同后，为加快滩涂改种的效益，对滩涂进行改造如建造闸门、公路等。由于滩涂所处基础设施的不断完善，原滩涂每亩不到170元/年承包费，随着其他养殖户的进入，承包费每年不断上涨；昔日无人光顾的滩涂，日趋升值。

村长许下重磅诺言

地属下兰塘的小雄镇梅岙村，在本次土地改种养过程中，有296亩土地以承包方式由镇政府予接受，当时代表村两委签字的是村委会书记和村民委员会主任。随着村两委改选和县人民代表选举的进行，瞿某为了竞选村委主任和县人大代表，据了解曾向村民承诺对原来村委与镇政府签订的下兰塘土地承包合同，可以推翻收回土地进行重新发包或提高土地承包价格，百姓认为无论是重新发包还是提高价格，对村民有益，这样在村委主任竞选过程中，自然当选；由于瞿某的竞选口号对其他村村民同样具有感染力，故在县人大代表选举过程中，在小雄镇选区以较高的选票当选为县人大代表。瞿某为了实现竞选诺言，以下兰塘土地承包各村人民一无所知、剥夺了广大村民的承包权、议事权和决定权为由，以书面或口头形式多次要求镇政府对已交由金潮公司经营的土地进行重新调整或更正，结果未得镇政府的同意。

协调不成 对簿公堂

由于对瞿某代表下兰塘十三个行政村要求调整土地承包价格款或对土地承包合同予以更正的要求，镇政府未予解决，瞿某的信誉在当地受到影响；为了挽回自已的信誉，瞿某想法是通过诉讼程序予以解决，为此他召集村两委班子研讨诉讼事宜，在两委班子会议上，当在协议上签字的村委书记明确提出：如价格低、期限长，可通过政府部门进行协调，如果把它推翻了，从理论上讲不过去；土地发包价格，从当时三门养殖开发情况看，未形成规模，其价格也是合理的；现下兰塘土地开发成功了，土地价格自然会升值，如未成功，土地价格也不会升值。瞿某听了书记的意见后认为：同政府讲什么？由于两人意见不一，起诉一事未在村两委达成共识。在此情况下，瞿某只得与他人一起，自已垫付诉讼费，以村民委员会名义对镇政府向台州市中级人民法院提起了确认土地承包合同无效和返还土地经营权的诉称要求，其起诉主要事实和理由：

1、土地面积不实；

2、土地承包价格偏低，极大地损害了村民的利益；

3、土地承包合同未经村民代表或村民三分之二以讨论通过，违反了《村民委员会组织法》规定，是无效的合同；

4、镇政府作为机关法人，没有从事商事行为主体资格。

针对村委会的起诉，主办律师周显根和何美玲代表镇政府答辩认为：

1、土地面积，是按村委会原先与他人所订的合同予以确定，不存在差错；

2、土地承包价格已超过了原村委会与他人所订的价款，其价款是合理的；

3、镇政府与村委会所订的合同是合法有效的，因为该合同所载的土地权属归政府所有，村集体经济组织对该土地不享有所有权，故本案确认合同是否无效，不适用《村民委员会组织法》的有关规定，合同内容没有违反法律、行政法规强制性规定且是双方自愿的，故土地承包合同合法有效；

4、政府在本案中没有从事商事行为，而是根据农业产业发展要求进行结构调整，故要求法院驳回村委会的起诉。

争议焦点：土地发包权是否依附于土地权属

村委会的起诉是建立在合同所载的土地权属归其所有；周显根律师认为：根据《村民委员会组织法》第2条、第5第有关规定，村民委员会办理本村的公共事务和公益事业，管理依照法律属于村民所有的集体土地和其他财产；《村民委员会组织法》第19条规定的要经过村民会议讨论通过的事项，必须是村民集体所有的财产或涉及村利益的公共事务或是公益事业；对此以后颁布的《农村土地承包法》第2条明文规定：农村土地，是指农民集体所有或国家所有依法由农民集体使用的耕地、林地、草地，以及其他依法用于农业的土地。因而本案确定村委会起诉是否有理，村委会是否有权发包本案讼争土地，关键在于村委会对土地是否享有所有权或合法的使用权；对此，周显根律师发表了如下代理意见：

1、本案讼争土地是由海涂围垦而成，在围垦过程中，是由政府进行投资进行的，当村民出力情况，政府已以记分形式对其进行补偿，这有政府向法庭提供的1984年、1985年有关各村包塘款分配表予以证实；根据《浙江省滩涂围垦管理条例》第22条规定，该土地依法应由政府享有权属。

2、本案讼争土地，村委会和镇政府均认为：到目前止，该土地原属滩涂，根据《宪法》第9条规定：依法属国家所有。

3、从该块土地管理事实表明：自1972年政府对该滩涂进行围垦以来，一直由政府进行管理，如1983年11月原小雄区公所参与的有关吴都乡、山场乡下兰塘土地开发利用协议、1983年山场乡把此土地发包给他人使用等证据予以证实。

4、村委会向法庭提交的《迫切要求归还数十载筑成的血汗塘》报告、其诉讼请求要求返还土地经营权等事实可以证明该土地是由原山场乡政府发包给各村经营，表明村委会对本案讼争土地不享有权属。

5、村委会至今也没有提供证据对该土地已取得所有权或合法使用权的依据；也没有依据证明该滩涂由其进行投资的凭证依据。

而村方代理律师认为：对于滩涂的土地使用权属或所有权凭证，整个三门县都没有进行定权发证，但一直来由村民投劳建设围垦并进行管理经营，这一事实表明村对本案讼争土地享有权属。因而有权对本案讼争土地进行发包。

无言的结局：村委会起诉被驳回

台州市中级人民法院经过审理认为：村委会作为讼争滩涂的发包方应当享有该土地的合法所有权或使用权，才能提出确认土地承包合同无效并要求返还土地使用权的民事诉讼请求。本案讼争的土地权属不明，至今村委会没有提交合法有效证据证明对该围垦滩涂享有法律上的所有权或使用权，镇政府对土地权属问题提出了异议，在土地权属争议未依法解决前，人民法院无法就土地承包问题按民事诉讼程序进行审理。村方应在土地权属明确的前提下，才可提起有关民事诉讼，所以本案现在尚不属于人民法院受理民事案件管辖范围，故裁定驳回村委会的起诉。村委会不服向浙江省高级人民法院上诉，二审法院经过程序审理，也驳回了村委会的上诉请求。

本案余音：政府欲对滩涂开展定权发证工作

在本案一、二审裁定驳回村委会起诉后，当地政府对滩涂的权属问题，进行了调查，根据调查情况，政府欲在适当时间开展滩涂定权发证工作，这对村民来说，也许是一大喜事。但就目前台州情况来说，许多地方在滩涂围垦后，未及时展开定权发证工作，这也许是立法工作滞后，也许是行政管理工作中不到位，希望有关部门予以重视，以保障村民和养殖户的合法利益。

Record of the village committee suing the town government for land contract dispute agency

——Lawyer Zhou Xiangen

The former mudflat is a treasure today

Xialantang tidal flat in Xiaoxiong Town, Sanmen County has been reclaimed with government investment since 1972. Due to the invasion of tide and typhoon, the reclaimed mudflat collapsed normally; During the reclamation process, the local people invested a large amount of labor, and the government compensated for this in the form of scoring. In November 1983, the former Sanmen Xiaoxiong District Office divided the reclaimed mudflat into Wudu Township and Shanchang Township for management in order to strengthen the management of the reclaimed mudflat. In the second half of 1983, Shanchang Township contracted Xialantang reclamation of mudflat to Guo and other villagers in Ninghai County, with the contract period ending in August 1986; Since August 1986, Shanchang Township has handed over Xialantang mudflat to villages for contract use until November 1997. Since then, some villages have contracted others to plant watermelon and other crops on the mudflat, with a contract fee of about 170 yuan per mu. Since the reclamation of Xialantang mudflat, cotton, watermelon and other crops have been planted; In November 1999, the People's Government of Xiaoxiong Town formulated a plan for the development and transformation of Xialantang Tu Land to adjust the agricultural industrial structure. It was pointed out that due to the limitations of the economic and natural conditions around Xialantang, the ability to store light and resist drought was poor, the drainage and flood prevention facilities were incomplete, there was no tidal water diversion system, and the planting level of the group was low; Suggest changing to aquaculture to overcome the three major deficiencies of drought resistance, flood control, and tidal range. At the same time, since 1999, the People's Government of Sanmen County has continuously formulated and issued policy documents related to the management of mudflat replanting and breeding projects. Taizhou Jinchao Fishery Development Co., Ltd. (hereinafter referred to as Jinchao Company) has reached a development intention with the People's Government of Xiaoxiong Town, Sanmen County in order to develop Xialantang mudflat. In this case, the People's Government of Xiaoxiong Town, Sanmen County held a signing ceremony with 13 administrative villages related to Xialantang mudflat on September 19, 2000, and handed over the land originally contracted by each village to the town government for unified contract awarding, with the price of 250 yuan per mu and the term of 25 years. On November 10th of the same year, the town government awarded approximately 2660 acres of land in each village to Jinchao Company at the same price and deadline. After Jinchao Company signed a contract with the repressive government, in order to speed up the benefits of mudflat replanting, it transformed mudflat, such as building gates and roads. Due to the continuous improvement of the infrastructure where the mudflat is located, the original mudflat contract fee is less than 170 yuan per mu per year. With the entry of other farmers, the contract fee keeps rising every year; The mudflat that were not visited in the past are increasing in value.

The village chief made a heavy promise

In Mei'ao Village, Xiaoxiong Town, under the jurisdiction of Lantang, 296 acres of land were accepted by the town government through contracting during the land conversion and maintenance process. At that time, the village committee secretary and the director of the village committee signed on behalf of the village committee. With the re election of the village committee and the election of the county people's representative, Qu, in order to run for the director of the village committee and the representative of the county people's congress, it is understood that he promised the villagers to overturn the land contract signed between the village committee and the town government in Xialantang, and to re contract or increase the land contract price. The people believed that whether re contract or increase the price was beneficial to the villagers, so he was naturally elected during the election process of the village committee director; Due to Qu's campaign slogan being equally infectious to other villagers, he was elected as a county people's congress representative with a high number of votes in the Xiaoxiong Town constituency during the county people's congress representative election process. In order to fulfill his campaign promise, Qu repeatedly requested the town government in writing or orally to readjust or correct the land that had been handed over to Jinchao Company for operation, citing that the people of various villages in Lantang had no knowledge of the land contract and had deprived the majority of the villagers of their contracting, deliberation, and decision-making rights. However, the consent of the town government was not obtained.

Failure to coordinate and file a lawsuit in court

Due to the request for adjustment of land contract prices or correction of land contract contracts from 13 administrative villages in Lantang, represented by Qu, the town government has not resolved the issue, which has affected Qu's reputation in the local area; In order to restore his own reputation, Qu's idea was to resolve it through litigation procedures. To this end, he convened a group of village committee members to discuss litigation matters. At the meeting of the two committee members, the village committee secretary who signed the agreement clearly proposed that if the price is low and the deadline is long, coordination can be carried out through government departments. If it is overturned, theoretically it cannot be done; The land contract price, based on the development situation of Sanmen aquaculture at that time, did not form a scale, and its price is also reasonable; Now that the land development in Lantang has been successful, the land price will naturally increase. If it is not successful, the land price will not increase. After listening to the Secretary's opinion, Qu thought: What should we talk to the government about? Due to differences in opinion between the two, a consensus on the prosecution was not reached between the village committees. In this situation, Qu had to work with others to advance the litigation fees and file a lawsuit in the name of the village committee against the town government to confirm the invalidity of the land contract and return the land management rights to the Taizhou Intermediate People's Court. The main facts and reasons for the lawsuit are as follows:

1. Inaccurate land area;

2. The low price of land contracting has greatly harmed the interests of villagers;

3. The land contract is invalid if it is not discussed and approved by the village representative or two-thirds of the villagers, which violates the provisions of the Organization Law of the Village Committee;

4. As a legal entity, the town government does not have the qualification to engage in commercial activities.

In response to the lawsuit filed by the village committee, the leading lawyers Zhou Xiangen and He Meiling defended on behalf of the town government, stating that:

1. The land area is determined according to the original contract signed by the village committee with others, and there are no errors;

2. The land contract price has exceeded the price set by the original village committee and others, and the price is reasonable;

3. The contract signed between the town government and the village committee is legal and valid, as the land ownership stated in the contract belongs to the government and the village collective economic organization does not have ownership of the land. Therefore, this case confirms whether the contract is invalid and does not apply the relevant provisions of the Village Committee Organization Law. The content of the contract does not violate mandatory provisions of laws and administrative regulations and is voluntary by both parties, so the land contract is legal and valid;

4. The government did not engage in commercial activities in this case, but made structural adjustments in accordance with the development requirements of the agricultural industry. Therefore, it requested the court to dismiss the lawsuit of the village committee.

Controversy focus: whether the land contracting right is attached to the land ownership

The prosecution of the village committee is based on the ownership of the land rights stated in the contract; Lawyer Zhou Xiangen believes that according to the relevant provisions of Article 2 and Article 5 of the Organization Law of the Villagers' Committee, the villagers' committee handles public affairs and public welfare undertakings in the village, and manages collective land and other property belonging to the villagers in accordance with the law; Article 19 of the Organization Law of the Villagers' Committee stipulates that matters that need to be discussed and approved by the villagers' meeting must be collectively owned property of the villagers or public affairs or public welfare undertakings that involve the interests of the village; Article 2 of the "Rural Land Contract Law" issued after this explicitly stipulates that rural land refers to farmland, forest land, grassland, and other land legally used for agriculture owned by farmers collectively or owned by the state and used by farmers collectively in accordance with the law. Therefore, whether the village committee's lawsuit is reasonable and whether the village committee has the right to contract out the disputed land in this case depends on whether the village committee has the ownership or legal right to use the land; Regarding this, Lawyer Zhou Xiangen has expressed the following proxy opinion:

1. The disputed land in this case was reclaimed from the tidal flats, and during the reclamation process, it was invested by the government. When the villagers contributed, the government compensated them in the form of points. This was confirmed by the 1984 and 1985 distribution tables related to the pond fees provided by the government to the court; According to Article 22 of the Regulations of mudflat Reclamation Management of Zhejiang Province, the land shall be owned by the government according to law.

2. The village committee and the town government believed that the land in dispute in this case was originally a mudflat until now, and according to Article 9 of the Constitution, it was owned by the state according to law.

3. The fact of land management shows that since the government reclaimed the mudflat in 1972, it has been managed by the government. For example, the original Xiaoxiong District Office participated in the Wudu Township and Shanchang Township Xialantang Land Development and Utilization Agreement in November 1983, and Shanchang Township contracted the land to others in 1983.

4. The report submitted by the village committee to the court on "Urgent Request for the Return of the Blood and Sweat Pond Built for Decades" and the fact that its lawsuit requests the return of land management rights can prove that the land was contracted by the original Shanchang Township Government to various villages for operation, indicating that the village committee does not have ownership of the disputed land in this case.

5. The village committee has not yet provided evidence to prove that the land has obtained ownership or legal use rights; There is no evidence to prove that the mudflat is invested by it.

However, the village attorney believed that the whole Sanmen County did not issue the right certificate for the land use right or ownership certificate of the mudflat, but the villagers have been engaged in the construction, reclamation and management of the land. This fact shows that the village has the right to the disputed land in this case. Therefore, they have the right to contract out the disputed land in this case.

Silent outcome: The village committee's lawsuit was dismissed

After hearing, Taizhou Intermediate People's Court held that the village committee, as the employer of the disputed mudflat, should enjoy the legal ownership or use right of the land before it could put forward a civil claim to confirm the invalidity of the land contract and request the return of the land use right. The ownership of the land disputed in this case is unknown. So far, the village committee has not submitted legal and effective evidence to prove that it has the legal ownership or use right of the reclaimed mudflat. The town government has raised an objection to the land ownership issue. Before the land ownership dispute is resolved according to law, the people's court cannot hear the land contract issue according to the civil procedure. The village should only file a civil lawsuit on the premise that the land ownership is clear. Therefore, this case does not yet fall under the jurisdiction of the people's court for accepting civil cases. Therefore, it has been ruled to dismiss the lawsuit of the village committee. The village committee appealed to the Zhejiang Provincial High People's Court against the appeal, and the second instance court also rejected the village committee's appeal request after procedural trial.

Afterword of the case: the government wants to carry out the work of determining rights and issuing certificates to mudflat

After the ruling of the first and second instance of the case rejected the prosecution of the village committee, the local government conducted an investigation on the ownership of the mudflat. According to the investigation, the government wanted to carry out the work of determining the rights and issuing certificates for the mudflat at an appropriate time, which may be a great joy for the villagers. However, as far as the current situation in Taizhou is concerned, many places have not carried out the work of determining the right to issue certificates in time after the reclamation of mudflat, which may be due to the lagging legislative work or the lack of administrative work. I hope that the relevant departments will pay attention to it to protect the legitimate interests of villagers and farmers.