Research On The System Of Three Rights Separation Of Homestead

The current system of right to use homestead in China is established on the basis of "separation of two rights".The nature is to maintain the fundamental survival rights of the farmers,and play the role of social security and rural stability.With the continuous progress of economy and society,it is difficult to achieve the function of private law due to the limitation of the existing legal system.The policy of the Separation of theThree rights of homestead is to realize the private use value of rural homestead and to activate the land resources of rural homestead.The separation of the three rights is an economy-led reform of the homestead system,which is in order to release the right to use the homestead and restore the right to use the homestead essentially analyzed from the legal perspective.The definition of homestead separation of the three rights should be expressed as “the ownership of homestead,the right to use homestead,leasehold of the homestead” or “the ownership of homestead,the right to use homestead,the right of management of homestead”,and the three rights shall be enjoyed by the three civil subjects respectively,and construct the rights system of “ownership,usufructuary right,creditor’s rights or the usufructuary right”.I start with the evolution of the right to the use of homestead,explore the historical development of the right to the use of homestead,and analyzes that the existing homestead system cannot meet the needs of social development anymore,then propose the separated three rights of homestead in policy.The implementation of the policy shall be linked up with the law.This thesis also explains the nature and the internal relations of the three rights from the perspective of jurisprudence and so as to explore meaning of the three rights of homestead in private law.The most important thing to solve is the legal logic of the usufructuary right to usufructuary right in the change of the policy of the separation of the three rights to a legal expression.Further analysis is made on the character of real right of the management right of homestead,and it is concluded that the creation of the management right of homestead from the qualification of the peasant household is not a separation of rights,but a use of rights.Based on the analysis of the risk of the legal expression of the separation of the three rights of homestead and the difficulties in the implementation of the theory,I hold that a complete legal system of the separation of the three rights of homestead should be established.In the "implementation of the collective ownership of homestead",it should be clear that the collective economic organization is the civil subject in the management of rural land property,and its right should be strengthened.In the "guarantee of the qualification right of peasant households",the qualification right of peasant households should be defined as the right to use homestead which can entitle the secondary right of use,and the confirmation effectiveness of qualification shall be registered,and the system of compensated withdrawal of peasant households’ qualification right should be improved.In the "moderate release of homestead use right",it is clear that the nature of use right is establishment of the usufructuary right or creditor’s right to use on the activate of homestead use right.The use of creditor’s right is defined as homestead lease right,and the use of real right is defined as homestead management right.