| In recent years, small property rights house becomes a focus which people often talk about, just for the media keep on reporting it endlessly. Small property rights house is not a legal concept, however, it's a special definition created by the media, which means the property right cards of the houses don't issue by the Government, but by the villages and towns government. Because of the particular land system in our country, small property rights house couldn't get the complete rights. According to the present land system, we have two kinds of land ownerships, one is state land ownership, and the other is collective land ownership. We cannot get full use of the collective land ownership for there are so many limits for it, so when we transfer the houses which built on the land that belongs to the collective, we troubled by the problem that we cannot transfer the land ownership with the house at the same time. For land privatization in other countries, generally speaking, there is no such a problem --- small property rights house. It's a unique social phenomenon in China. Although at present the official considers small property rights house is illegal, however, widespread disputes about the validity of the small property rights house in the educational world are still quite intense. A series of legal regime questions which is caused by small property rights house have some important fundamental researching value.There are six parts in my paper: the very beginning is the part of the introduction, the second part is legal regime analysis for the origin of small property rights house, the third part is the social structure analysis for the origin of small property rights house, the fourth part is the benefit equalization analysis for the origin of small property rights house, the fifth part is the system construction for the validity of the small property rights house and the last part is my epilogue for my paper. In my paper I make a comprehensive analysis, investigation and exploration of the small property rights house and also some related legal institutions.In the introduction, I use a lot of full and accurate datum to explain that the small property rights house was born by chance in such a social environment that the real estate market developed fast, the house price raised soon and the citizens could not bear the stress of buying houses. For the citizens cannot offer the high price for buying house, so they have to choose the small property rights house as one of the ways to live. In fact, the small property rights house becomes a kind of social needs in some sense. I use the act of Li yulan in Beijing to reveal and analyze the dilemma that the small property rights house is faced. It doesn't have the complete property rights, nor gets the protection by laws, so there is no doubt, the experts had raising questions and disputes to the small property right house for those conditions.My topic in the second chapter is legal regime analysis for the origin of small property rights house. In this part I analyze the validity of small property rights house from the aspect of legal system. First, I define small property rights house, and also talk about its range in the law. I inference the constitutionality and validity of the small property rights house by explaining some related rules in Constitution, Property Rights Law, Land Management Law and so on, and than get the conclusion that there are not enough and reasonable legal basis for the official defines the small property rights house is illegal .And next, I analyze the illegitimacy of the 43rd and 63rd rules in the Land Management Law , point out that they are not only breach the principia of"making the best use of things"in the Property Rights Law, but also break the rule that the state land and the collective land could enjoy the equal property rights, which mentioned in the Constitution. The rules are unconstitutional, there is no excuse, we had better amend them.In my third chapter I focus on social structure analysis for the origin of small property rights house. In this part I start with homestead right of use system and the urban---rural areas dual household registration system, think over the land system and the household registration system in dual social structure in China, and get the conclusion that the systems is the deep reason for the birth of the small property rights house. As the time goes by, the land system and the household registration system which built at the beginning of the founding of our country are not suitable for the development of our society in new period. In my paper I focus on what problems the land system and the household registration system bring for us: the increasing gap between rich and poor, no protection for the peasant workers'rights, the terrible limitations for the traditional farming change to be modern agriculture, and the deprivation of peasant workers'right to development. It is true we suffered a lot by such unreasonable systems; we have no other choice, but try our best to amend and change the situation, to build up the new land system and the household registration system which suitable for the present situation of our country.Benefit equalization analysis for the origin of small property rights house is the topic in the fourth chapter. In this part I use some related theories in Law and Economics to analyze and explain the reasons for why the small property rights house comes into being. After I analyze the conflict of interests between the peasants and the government, the peasants and the collectivity, and the conflict of interests between the public and the real estate developers, I get the conclusion that it is unfair to forbid the exchange of the small property rights houses; it is unbalance in assigning benefits. In that situation, the farmers and in the low-income workers'interests are ignored, but on the other side, the real estate developers and the local authority's benefits are valued too much. Farther, the law system design should follow the fundamental that the allocation of resources must keep balance between each other. However, the fact is that we have lost the balance, what we have to do is to make some useful changes to recover the allocating benefit function of legal system.In the fifth chapter, I point out it is quite necessary to legalize the small property rights house on the basis by summing up what I have written in the parts one to four. And then, I list the experts'solutions to the problems which would be caused by the legalization of the small property rights house. In the part of suggestions to legislation, I creatively advise to set up the system that the collectivity land owned by the community, and also set up the supervisor for the community land, who takes responsibility of caring the community land, and at the same time, the supervisor is also the specific owner of the collectivity land. In that way, we could get complete use of the collectivity land ownership, and we could also restrict to some unreasonable interventions from the local government and township cadres. When I talk about the community land ownership, I also think about to set up the system of supervisor of the community land, to define the rights and obligations of the community members, and I also suggest to amend the Land Management Law in order to abolish the limitations of exchanging the non-agricultural lands which owned by the collectivity, to make the collectivity land share the same rights, the same price with the state land. In order to protect the state farming land and the farmers'land rights and interests, as far as I'm concerned, it is necessary to check up and supervise the whole exchange process---before exchange, in exchange, and after exchange. Only by that way we could prevent the loss of arable land and forbid the farmers'property rights of the collectivity land seized by others. And than my paper mentions that we could make the small property rights house as a chance to lessen the big gap between urban and rural areas, to make it is possible for our country to reform the household registration system for we would get the good population distributing condition, then to change the urban---rural areas dual household registration system step by step, at last we will realize integration of Urban and rural.In my epilogue, I show my point of view on the basis of summing up the whole paper that the small property rights house is the product of the imperfect land system, household registration system in China and some faultiness related legal rules. It is also shows the unbalance of the design of legal system in assigning benefits and interests. To forbid the exchange of the small property right houses falls short of the principle of free trade in market economy, and breaks the Voluntary Principles in civil law, further more, it doesn't obey the principia of"making the best use of things"in the Property Rights Law. At the same time, it is contrary to the fairness and justice in distributing resource in socialist society, so there is no excuse, there is no doubt, we'd better and we must endow the small property rights house with legalization of status. |
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