| Since the1990s, the principle of integration between house ownership andland-using right has been in use as fundamental principle in real estate market.It provides compulsorily that the conveyance between house ownership andland-using right should be carried out in the same way, with the function ofreducing dispute and facilitating judicial operation. But because of historicallimits, disregard of autonomy of will and incorrect research methods, theprinciple see its own defects in the social practice and heated arguments amongscholars have been triggered. To set up reasonable rule on house ownership andland-using right, this article based on jurisprudence analysis assumes thepossibility of separate conveyance between house ownership and land-using rightunder the thought that legal relationship between objects and that between rightsdetermine the conveyance rule. Through comparative analysis between unitarydoctrine and dualistic doctrine, we find that the house and the land respectivelyconstitute independent object and do not make up the relationship between rescapitalis and res accessoria. Concerning the relationship between houseownership and land-using right, the principal and subordinate relation theory,the rights absorption theory and the efficiency theory reveal the necessity,feasibility and legitimacy of the mentioned separate conveyance rule. As arestriction for the integration principle, the separate conveyance rule should besets as follows:” Under written agreement, parties can convey house ownershipand land using-right separately by setting leaseholds. The obligee of landusing-right enjoys preemption when the owner sells his house. In the case of noagreement, house ownership and land-using right will be presumed identicalsettlement.” Finally, the applicability of the separate conveyance rule is tested byoffering its use in the current heated problem of rural small room propertyrights with justified theoretical basis and proper solutions. |
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