Research On The Inheritance Of Homestead Right

The dual demands of legislation and practice make it necessary to reform the inheritance system of homestead use right.What attitude to take at the fork in the road between the recognition of inheritance and the denial of inheritance has become the focus of discussion.From the point of view of the system,it is more appropriate to recognize the right toAt present,there are contradictions in the judicial practice and no unified standard on the inheritance of homestead right.First of all,for the house on the homestead,most of the court made the judgment to allow inheritance,but for the loss of the house,renovation,no house,the court does not allow inheritance.Secondly,for the inheritance of the right to use homestead,local practices should not be the same,and inheritance is not allowed.However,after 2019,the number of judgments allowing inheritance has increased,which to some extent reflects the change in the attitude of the court on this issue in recent years.Finally,the people's court rejected a relatively high proportion of the litigants' claims to inherit the right to use house sites,which reflected the relatively unified practice of the court and collective economic organizations in the same area.The causes of the contradictions in practice are from the unclear legislation on the right of inheritance of homestead.In terms of legislation,China's laws,administrative regulations and rules have not made a positive response to this topic.On the one hand,the interpretation logic of the law affirming the right of inheritance of homestead holds that China's constitution and the law of inheritance protect citizens' legal right of inheritance of houses,while the property law stipulates the principle of "one body of premises",allowing the heirs to inherit the house on the homestead while,of course,inheriting the right to use the homestead.On the other hand,the interpretation logic of the law that denies the right of inheritance of homestead holds that homestead does not belong to the private property of citizens,and therefore does not belong to the scope of inheritance.In addition,the "land management law" stipulates the principle of "one family,one house",so the members of the collective economic organizations who already own the homestead and the non-rural registered permanent residence residents cannot inherit the right to use the homestead.homestead inheritance.In the negative,it mainly provides two alternatives to solve the problem that inheritance is not allowed.The first is the homestead legal lease system.The system is derived from the laws and regulations of Taiwan,which provides ideas for the transfer of homestead use right,but it is not suitable for inheritance.In addition,the period of the lease right is not clear,and the right is not clear after the loss of the above-ground house.Therefore,it cannot positively respond to the fundamental problem of the inheritance right of the right to use the house site,which cannot achieve the effect of the reform.Second,the homestead use right carries on the recovery system.China's laws do not provide for this,but there is such a practice in practice,however,the village committee as the main body of the homestead recovery is not appropriate,so the recovery of land use rights is similar to administrative expropriation,the need for administrative organs in accordance with the procedure.In addition,for the legal formation of "more than one house" or "occupied area",direct recovery also exists unreasonable factors,not to mention there is no corresponding compensation measures to make up for the loss of heirs.Therefore,compared with denying the inheritance to make up for the loss,it is better to affirm the inheritance of the right to use the homestead and construct reasonable inheritance rules,so as to give consideration to the right of inheritance of citizens and the ownership of the land of collective economic organizations.From the point of view of theory,the inheritance of the right to use the homestead has the legitimacy.First of all,negative said that the "one family one house" is only the principle of the law,its "door" and "house" are not clear enough.The principle does not prohibit the inheritance of homestead use right from the perspective of legislative purpose or legal effect,nor does it contradict the inheritance of homestead use right.Secondly,non-members of the collective economic organization are not forbidden to inherit the right to use the house site.It is not rigorous to directly infer that only certain members of the collective economic organization enjoy the right to use the house site from the characteristics of the "subject specific" of the house site.Similarly,the member that is not rural collective economic organization also should not be subjected to this restriction.The state has promulgated a series of land management policies aimed at restricting urban residents from buying and sellinghomesteads and interfering with the land market,rather than disinheriting them.After determining the direction of the reform,it is more appropriate to affirm the inheritance of the right to use homestead,it is necessary to construct a reasonable system from three aspects: legislation,system and supporting measures.First of all,the property law and the land management law need to include the right to use homestead into the scope of inheritable heritage,and further specify the principle of "one family,one house".Secondly,it is necessary to set up the systems of compensated inheritance,term inheritance,conditional recovery and conditional withdrawal of the right to use homestead at the same time,so as to build a complete system of inheritance of the right to use homestead,and at the same time to improve the supporting measures such as land registration and transfer of the right to use homestead,so as to provide support for further exploration of the inheritance of the right to use homestead.