Research On The Legal Issues Of The Transfer Of The Right To Use The Homestead Under The Separation Of Three Rights

Due to China's special national conditions,since the founding of new China until now,the land system has been an important system directly related to social stability.The homestead system is an important part of the land system.It is an important task to keep the homestead system in a deep integration with The Times.At present,the use right of homestead in China is forbidden to be transferred,and the idle rural land is in a state of "sleep",which leads to the waste of a large number of land resources.It is the trend of the development of rural land system to gradually open the circulation of the right to use house sites,and the only way to activate rural land resources and realize the optimal allocation of resources.This paper sorts out and analyzes the literature on the research of homestead system,reviews the development history of homestead system,studies the basic conceptual characteristics and legal nature of homestead use right and its transfer,and constructs a new mode of homestead use right transfer based on the practice of homestead system reform in various regions.This paper is composed of introduction,body and conclusion,specifically as follows:The introduction mainly includes the research background,research significance and research status.At present,the research on the transfer of homestead use right mainly focuses on four viewpoints: free transfer,prohibited transfer,limited transfer and compromise transfer.The research on the transfer mode mainly focuses on three viewpoints: government-led transfer,peasant households' spontaneous transfer and collective promotion.In addition,there is a study on the transfer intention and the basic theory research after the separation of three rights.Separation in the second part mainly research division under the concept,characteristics,legal nature of housing land use right,about the legal nature of different academic point of view,focuses on "usufructuary right" and "superficies" and "right of full ownership" three point of view,the author thinks through the analysis of housing land use right should be a principle with characteristics of quasi ownership.Based on the current legislation,this part also makes a legal interpretation of the theory of the separation of three rights on homestead,and holds that the corresponding rights structure of "ownership","qualification right" and "right of use" are "ownership right","usufructuary right" and "secondary usufructuary right".The third part sorts out the historical development of the transfer of homestead use right,and divides it into four stages according to the different land rights structure.It also analyzes the general situation and characteristics of the transfer of homestead use right in China's current legislation,and finds that the legislation is vague and scattered,the transfer mode is single,and the real right publicity is absent.This paper analyzes the shackles of the legislation on the transfer of homestead use right and puts forward the theory of "separation of three rights".The fourth part studies the practice of the pilot areas of homestead system reform,summarizes the experience and lessons,and provides reference for the next step of designing the new model of homestead use right transfer.The fifth part,try to design separation under the division of housing land use right transfer "limit",namely,key in equality,voluntary,protect the interests of farmers,under the guidance of the principle of public power intervention,take direct transfer,mortgage,joint venture,inheritance,to reasonable use of house-site in the countryside,in the form of breaking the original can't to the collective land use right outside the main flow barriers,at the same time,establish the effective transfer of housing land use right registration mode,strengthening the role of housing land registration.We will regulate the subject,mode,and conditions of the transfer,and formulate a system to guarantee the access,priority purchase,and information disclosure to both parties to the transaction,especially the interests of farmers,so as to ensure that the interests of farmers and collectives will not be damaged in the transfer of the right to use homestead.