The Study On The Legal Problems Of The Transactions Of "Incomplete Property Right" Houses

The transactions of "Incomplete Property Right" Houses turned to be a social problem at the background of the high housing price on which our government's regulation received little effectiveness and the inefficacy of housing safeguard. Speculated from our current law, the right of using collective land is only enjoyed by country collective members. The legal effect of the circulation of "Incomplete Property Right" Houses which built on the collective land is unclear because of unclear statute, and therefore controversy has arisen during scholars and correlative departments. People at towns and countries are looking on our country's attitude to "Incomplete Property Right" Houses as well. Defining the effect of the transactions of "Incomplete Property Right" Houses in the law, could help to make the legal relations caused by "Incomplete Property Right" Houses clear, instruct and standardize people's civil behavior caused by "Incomplete Property Right" Houses, and resolve correlative controversy. As a result, to study on the legal effect of the transactions of "Incomplete Property Right" Houses has both important theoretical significance and practical significance.At part 1, the article described the background of the transactions of "Incomplete Property Right" Houses by quoting a great of data, pointed out that the situation of the great gap between the housing price and Towner's income, inefficacy of our government's regulation on the high housing price, and the situation of the relative low price of "Incomplete Property Right" Houses. By quoting the case of "the transactions of rural house which owned by LiYulan in Xindian village at Beijing", the article pointed that although the market of "Incomplete Property Right" Houses was very prosperous, there was no law to regularize the transactions. The situation gave rise to people's attention, the experts and related sectors all expressed their opinions which contained both support and objection.At part 2, the article focused on analyzing the legal effect of the transactions of "Incomplete Property Right" Houses. The "Incomplete Property Right" Houses generally built on the rural collective land; people who buy the "Incomplete Property Right" House couldn't get a property ownership certificate because the house wasn't after the procedures of government land acquisition and land transfer but a "Incomplete Property" property ownership certificate given by the town government or villagers committees. Firstly, the article defined that the difference between the "Incomplete Property Right" Houses and the transactions of "Incomplete Property Right" Houses, secondly, to make clear that what the article really studied on is the effect of the transactions of the "Incomplete Property Right" Houses which wasn't against the prohibition laws and Construction Planning. Through analyzing related laws and rules, the article believed that there are no definitely allowable or prohibitive laws for the circulation of the rural collective land. People can buy or rent rural houses, but the transferring of the right to use the homestead only between the members in the same collective organization. On the other hand, there are some national policies stat that the transactions of the "Incomplete Property Right" Houses are forbidden. As a result, our country seems more prefer to deny the transactions of "Incomplete Property Right" Houses now.In the 3rd part of the article analyzed the surface and underlying causes of the rise of the transactions. On the surface, the transactions of the "Incomplete Property Right" Houses can be performed rapidly to the current size is due to the high price of urban informal commercial houses, while the relatively cheap price of the "Incomplete Property Right" Houses are just to meet the demand for low-income people who want to buy a house. Variety of reasons resulted in the high price urban informal commercial houses, such as the land costs, construction costs, speculative behaviors in the real estate market, poor effects of the government regulations, ineffective of the housing security measures, and so on. In essence, transactions of the "Incomplete Property Right" houses are the product of the conflict of interest between the rural collective organization and the government. Our land system is a dual ownership of land that the land is owned by state or rural collective organization. When the real estate developer seeking to develop a certain piece of collective land that meets the requirements of develops, the first step is to sign collective land for the state-owned after land acquisition by government. After the procedure, the great value-added revenue from the land-- the land transfer fees were vested in the government. As the original landowner, the rural collective organization couldn't enjoy the value-added revenue because the nature of the land. As a result, the conflicts arise.At part 4, the article demonstrated from the point of view of legislative effect that legal recognition for transactions of the "Incomplete Property Right" in China would not be appropriate currently. This section cited the reasons of the view of supporting that "Incomplete Property Right" houses should be legalized, which are also the desired effect of the legislation. Through analysis, legal recognition for transactions of the "Incomplete Property Right" houses could not achieve the desired effect. On the contrary, it would bring a host of social problems, resulting in adverse effects, such as impact of the real estate market order, poor protect for the interests of buyers, farmers land lost, and so on. Legally speaking, proponents believe that restrictions on the transfer of collective land are a collective land ownership restriction, which incompatible with the civil law principle of equality. When the personal interests'conflict with public interests, personal interests should be subordinate to the public interest, for the purpose of the public interest is ultimately to protect the security of their personal interests, to regulate the interests of members, and promote the growth of personal interests ultimately. Only the social order is stable and the nation is peace and safe could the personal interests be actualized.In the 5th part of the article proposed some problem-solving strategies. First of all, the law shall stipulate clearly the legal effect of the transactions of the "Incomplete Property Right" houses that rural residential land can only be allocated to the villagers, collective land shall not be occupied by Towner to build houses, farmers are not allowed to transfer their Collective land use rights to the one who are not farmers in the same village collective organization, but also shall not disguise the transfer of residential land use right by transfer housing (such as "Incomplete Property Right" houses), etc. Secondly, let the government and the village collective organization share the land value-added benefits, the state shall increase its efforts to increase housing supply, curb speculation and increase safeguards to regulated the housing price, from both the supply and demand of the transactions of the "Incomplete Property Right" houses to prevent this kind of housing transactions which is initiatively and of interests pursuit. At last, the article proposed some suggestions of solving the "Incomplete Property Right" houses of current existence, to safeguard the interests of buyers and farmers and to promote the healthy development of the real estate market.