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《农村土地承包法》第26条第2、3款的形成经历了“农村-城市”向“小城镇-设区的市”标准的变化,其立法意旨在于通过小城镇与设区的市的区分避免土地承包经营权与健全社会保障制度同时兼得局面的出现。然而小城镇与设区的市的界限并非泾渭分明,司法实务界对小城镇与设区的市的界定发展出了的三种学说:严格界定说、目的限制说与目的依据说;从立法目的而言,进行一般化处理后的目的依据说应当成为优先考虑的选择,但也存在一些问题。
The formation of sections 2 and 3 of Article 26 of the Rural Land Contract Law has undergone changes in the criteria of “rural-city ” to “small town-district-setting city ”, and its legislative intent is that through the establishment of small towns Distinction between districts and cities Avoidance of the appearance of a situation in which the right to contractual management of land and the improvement of the social security system are combined. However, the boundaries between small cities and districts are not entirely different. The judiciary has developed three kinds of doctrine of defining the cities between small towns and districts: strict definition, the purpose of restriction and purpose, and the legislative purpose The statement that the purpose of the general treatment should be a priority choice should be made, but there are also some problems.