| As the most fundamental system designed in the field of property rights,each country has made unique arrangement for land system based on its own history and national conditions.The unique system of the use right to curtilage not only pulls the countryside,but also connects the city,and has a unique system character.With the establishment and perfection of China’s market economy system,curtilage,as a scarce land resource,its functions as a kind of assets are becoming more and more obvious.The system of the right to the use of curtilage constructed in the era of planned economy neglects its economic attributes.In practice,the contradiction between the low efficiency of the use of curtilage and the lack of necessary property income sources for farmers is prominent.No more restrictions on the circulation of the use right to curtilage and allocating the curtilage resources through the market has become an inevitable way of current reform.Under the strategic layout of rural revitalization,document No.1 of the Central Committee of the People’s Republic of China in 2018 proposed to “divide the title,qualification right and use right to curtilage.There is no expression about the "qualification right" of curtilage in the current law of China.In order to seek the legally proper expression and realization of the rich connotation of "dividing the Three Rights" to Chinese curtilage " in the central policy document,it is necessary to,under the current legal system,take the policy document as the goal and combine the feedback of practical experience to construct the legal right structure of the use right to curtilage based on the "division of three rights".This dissertation consists of three modules with seven chapters.The whole dissertation is connected with the fourth chapter interpreting the policy of "division of three rights" to curtilage and mainly demonstrates the innovation of usufructuary right to curtilage value-oriented by sharing and enriching people without changing the public ownership.Chapter one is about the general explanation of the system of the use right to curtilage.By tracing the formation and evolution of the system,this chapter systematically combs the history of it in rural areas in China in the past 70 years.In the early days after the founding of PRC,under the guidance of Marx’s theory of land property rights,People’s Commune Movement and the construction of this system were developed.In order to coordinate with the national policy of giving priority to the development of heavy industry,agriculture and rural areas provided primitive accumulation to industry and cities.The dual governance in urban and rural areas under the both control of the system of the use right to curtilage and household registration system firmly binds farmers to the land.It is a systematic and comprehensive project to construct the system of the use right to curtilage,which has complex functions such as residence,social security,property and social control.Based on the socialist public ownership,the system of the use right to curtilage has a strong color of public law.The system,which was formed in the specific historical background and social environment,has unique characters different from those of the general usufructuary right in the traditional civil law system,namely,as for the property right system,"One house,two systems” are formed on the basis of "division of two rights";for the use system,the administrative allocation dominates while the market allocation supplements;for the distribution system,under the principle of residential security,each family has a house for free and permanent use;for the circulation system,the curtilage is forbidden to transfer.It is precisely because of the complex historical background and multiple functions of the system of the use right to curtilage that determines the significance of the system in rural social governance and the difficulty in reform.Chapter two analyzes the real predicament of the system and its causes.Over the past 40 years after reform and opening up,China has initially established a relatively complete socialist market economy system.The system has partially fulfilled its historical mission and because of the important role of the gradually solidified pattern in maintaining the stability of rural society,the system has continued to this day.However,the system with incomplete right functions has not been able to cope with the rapid development of social economy,and has even become an important factor of restricting rural revitalization,hindering agricultural development and affecting the growth of farmers’ income.In practice,the system faces many difficulties due to the inefficient use,secret transfer and increased transaction disputes,which results in inability to meet the requirements of the new urbanization strategy,and to achieve the goal of satisfying the rural residents’ pursuit of a better life,and even the risk of gradually going out of control of management.There are three main reasons for this: first,the change of the times.The closeness of rural communities and the non-circulation of population have been broken in the "post-rural society".The life prospect of "local society" on which the construction of the system relies has changed.Second,the evolution of function.The property function of the use right to curtilage is prominent.Between this and the other,the function of housing security is gradually weakening under the impact of market economy.Third,the supply of system.The legal system of the use right to curtilage is insufficient.Due to the deviation of legislative value and the lag of statute law,the legal system of it falls behind.The third chapter is about the modern ways to reform the system of the use right to cartilage.Under the condition of market economy,for the sake of economic benefit,the contemporary civil law system gives birth to the pursuit of efficiency.The development of the concept of property right from "own" to "use" requires the realization of "making the best use of everything ".The lack of the right to disposal makes the curtilage and farmer’s house become the "stillbirth".Under the new urbanization development strategy,the urbanization process faced with the countryside needs to change the existing system of the use right to curtilage,which should pay more attention to what farmers need,rather than what farmers can continue to do.In fact,as an important property right owned by farmers,the circulation of the use right will help farmers to realize the substantial increase of property income.Therefore,it is of great practical significance to promote the reform of the use right for realizing the integration of urban and rural development,alleviating the contradiction between supply and demand of urban and rural construction land and improving the efficiency of the use of curtilage.With the loosening of the "binding people and land together" brought about by the reform of household registration system,the construction of rural social security system has led to the transformation of system functions,and it is possible to activate the transfer of curtilage.Although there is still a controversy in theory about the liberalization of circulating curtilage,most scholars have proposed that it is not appropriate to confuse the identity restriction of the use right to curtilage with the property attributes.Restricting farmers’ disposition of curtilage is no different from treating all farmers as " interdicted persons",which is inconsistent with the hypothesis of "rational man" in modern law.Since 2005,two rounds of pilot projects for curtilage transfer have been carried out in Tianjin and other places.By summing up the experience of two rounds of pilot projects,the conclusions are made as follows: 1.The reform of the right to use should focus on exploring the innovation of usufructuary right to curtilage value-oriented by sharing and enriching people without changing the public ownership.2.The three basic questions of reforming the use right to curtilage respectively are how to value the curtilage,how to carry out the reform within the framework of the rule of law and how to straighten out the relationship between urban and rural areas.3.Three unbreakable bottom lines for reform are to insist that collective ownership not be changed,to ensure that the red line of cultivated land not be broken,and to protect the legitimate interests of farmers from being damaged.Chapter four interprets the policy of "Division of Three Rights" of curtilage.The reform begins in the countryside and comes from practice.The reform of the system of the use right to cartilage follows the usual pattern of the rural land reform in China,namely,from spontaneous exploration in practice to pilot practice and policy coming first,then confirmed in legal form after being mature.The Policy of "division of three rights" of curtilage is generated for practical needs.From the consistent expression of the reform of the curtilage system in the central policy for many years,it can be seen that the essence of the reform is the extension and expansion of the "division of three rights" of agricultural land in the field of rural land system.Through the analysis of semantics logic of "division" and "separation",the concept of "division" is more in line with the legal expression of the reform of the use right to curtilage.Through the interpretation of the profound implication of "division of three rights" in the policy text,the internal logic of the reform can be found: with implementing the collective ownership as starting point,guaranteeing the farmers’ qualification right as the key,while moderately liberalizing the right to the use of cartilage as foothold and core.Promoting the reform of "division of three rights" to curtilage is of great significance in strengthening and implementing collective ownership,optimizing the allocation of rural land resources,increasing farmers’ property income,realizing the sharing of curtilage rights among three parties,building rights around curtilage and improving the rights system in Civil Code.The chapter fiver discusses the legislative expression of collective title under the "division of three rights".Tracing back to its origin,the system of collective title in China originated from the cooperative movement of rural land.Through the rapid practice of rural land cooperation mobilized by the state,the system of collective title with Chinese characteristics has been established.At the beginning of its construction,the title of collective land operated mainly as a tool of social change,with no difference from the collective ownership.It was not until the Property Law for the first time that makes collective title juxtaposed with state title and private title.Through reviewing the existing concepts,collective title conforms to the theory of "new total title theory" in nature and belongs to special common ownership.Through the investigation of collective title in the two dimensions of constitution and civil law,the design of the title system in civil law should be carried out on the premise of respecting socialist public ownership,and should not simply regard public ownership as an expression in the ideological field,while try to copy the Western real right system to construct the legal right system in rural land of China.In practice,the weakening and unreality of the title of collective land is caused by unclear definition of subject,incomplete right function and lack of implementation mechanism.While the reform of "division of three rights" to curtilage shows that the use right to curtilage is " jus in re propria ",at the same time,it is likely to have a new impact on collective title because of ignoring the era function of collective title system under the background of new urbanization.Therefore,the legal response to collective title should focus on the following three levels: First,clarify the duality of the subject of collective title and grant it the legal status of the special civil subject;second,clarify the special operation mechanism of collective title and improve its implementation mechanism;third,give the collective title complete right functions and realize the return of management function.Chapter 6 explores the legal response to the qualification right in the policy of "division of three rights".Through combing the connotation and legal attributes of the qualification right to curtilage in practice and theory,this dissertation points out the possible institutional arrangement and appropriateness of the qualification right from the perspectives of membership right and usufructuary right,and proves that the legal attribute of the qualification right to curtilage is collective membership right.The concept and expression of qualification right to curtilage is only stated in common language in the central policy documents,and has no substantive meaning.Legislation still adheres to the system construction of collective membership rights,instead of creating new qualification rights to curtilage.The transformation of the normative expression in property law from "peasants of the collective " to "members of the collective" means the recognition of members’ rights of peasants,which is a civil right with Chinese characteristics.The construction of collective membership system provides institutional basis for the dilemma of the use of collective land,and members’ right of collective is the link between members of collective and collective of members.Perfect system of members’ right of collective is conducive to the realization of collective title and protecting the rights and interests of collective members,and can also provide institutional support for the emergence of internal order of collective of members.As members’ rights of collective,with obvious human law attributes,are closely related to collective members,they have been over the scope of traditional civil rights.Therefore,it should be included as an independent civil right in the Real Right part of the Civil Code.Chapter 7 studies the legalization of the use right to curtilage in the policy document of "division of three rights".The use right divided from other rights is the foothold of the policy of "division of three rights",and should be regulated appropriately in the current legal system.Through analyzing the practice of pilot reform of "division of three rights",following the logic of demonstrating that the qualification right to curtilage belongs to members’ rights,the use right divided from other rights is in nature pure usufructuary right without regarding identity.Thus,the right structure of "collective title + members’ rights of collective(qualification rights)+ use right to curtilage(after the division)is formed in the field of the system of the use right to cartilage.Returning to the original intention of the policy,a further review of the "division of three rights" should be made.The three rights after division actually represent "four rights" in the process of legal realization,which are enjoyed by three kinds of right subjects,namely "collective title + members’ rights of collective+ use right to curtilage(belongs to farmers)+ use right to curtilage(belongs to other social subjects)".The policy of "division of three rights" has laid a foundation for the circulation of the use right to curtilage in the market,but the liberalization of it is not entirely risk-free.It should not be neglected that the capital is bloodthirsty in nature and peasants’ ability to resist capital erosion is weak.Under the circumstance that the unified social security system of urban and rural areas is not yet perfect,the necessity of curtilage as a guarantee of farmers’ production and survival still exists and plays an irreplaceable role.Therefore,the Central Policy Document also warns that "moderation" should be given to liberalization,that is,the liberalization should be on the premise of not damaging the realization of collective title,with guaranteeing the legitimate rights and interests of farmers as a key,and to strictly implement the policy which expresses what should not be done in one sentence and what should be strictly done in two sentences.Otherwise,the liberalization of the use right will encounter many risks,such as the collective title being unpractical,the peasants having nowhere to live,and the operation of the use right itself.Property can only be realized by entering the market.As far as rural development is concerned,due to the different endowments of resources,it is not a homogeneous world,so a distinction should be made in the aspect of liberalizing the use right and set different management objectives for different rural areas.As curtilage has characteristics of dispersion and fragmentation,the business function should be expanded in the liberalization of use right to curtilage so as to realize the combination of decentralized management and scale utilization of curtilage.A house,as an important property for a farmer,the core of achieving its benefits is to transfer and mortgage freely and turn assets into capital.The implementation of "division of three rights" to curtilage directly touches the core of rural land system,which is an important reform measure for rural stability,agricultural development and farmers’ income increase under the strategy of Revitalizing and Developing Village.It has great practical significance.Therefore,close attention should be paid to how to map the policy connotation of "division of three rights" to curtilage into legal provisions,how to transform it into a legal system which conforms to China’s national conditions and is practical,and what impact the construction of this legal system will have on other relevant legal systems of farmland.The reform of "division of three rights" to curtilage should be carried out on the basis of adhering to socialist public ownership,aiming at solving the realistic social problem of "agriculture,countryside and farmers",rather than copying the western real right theory to pursue theoretical purity and excellence.Based on China’s unique system of property rights,it is a legal requirement and condition for implementing the policy of "division of three rights" to curtilage to seek the appropriate expression of qualification rights and use rights within the framework of the existing legal system from a historical perspective. |
