Legal Structure Of The Separation Policy Of The Three Rights In Rural Homestead

The rural homestead system is a land system with unique Chinese characteristics,which is derived from the planned economy system and takes the aim of protecting the farmers’ living rights and interests and stabilizing the rural social order.In recent years,with the development of the socialist market economy and the adjustment of rural policies,the current homestead system has been unable to meet the realistic needs of the current rural development,and it is in urgent need of reform.In response,the no.1 document of the central committee of the people’s liberation party of China(CPC)in 2018 proposed the policy of "separation of three rights" for homesteads,with the basic direction of reform being "upholding collective ownership,ensuring that farmers have a place to live and releasing the property functions of homesteads".As a major institutional innovation to adjust the relationship between farmers and land,the "separation of three rights" of homestead still remains at the policy level.If the reform policy is to be implemented,it must be standardized,that is,it must be effectively transformed from "policy language" to "legal language".The main body of this paper mainly includes the following contents:In the first part,the development of the current homestead system is divided into three stages: germination,finalization and legalization,with the time as the node,so as to clarify its evolution process.Secondly,the paper analyzes the practical difficulties of the current homestead system from the legal and practical aspects.The former is mainly reflected in the fact that the ownership positioning of the homestead right of use is inconsistent with the actual function;the latter is mainly manifested in the fact that homestead is generally idle,the homestead invisible transaction is serious,and the farmer financing is difficult.In the second part,firstly,the homestead reform policy is sorted out,focusing on the clear homestead "three rights separation" reform attitude and reform concept;Then it analyzes the changes in the connotation of homestead system from "separation of two powers" to "separation of three powers".Finally,this paper discusses the construction path of the legislation of "separation of three rights" of homestead,which is mainly to solve the legal nature of "right of qualification" and "right of use".Through the analysis and comparison of various viewpoints,it is found that the "qualification right" should be interpreted as the original homestead use right,and the "use right" is the secondary use right established by the derivation of rights with the original homestead use right as the mother right.Therefore,the construction path of the legislation of "separation of three rights" of homestead is "collective ownership → homestead use right → secondary use right".The third part mainly takes the homestead ownership under the "three rights separation" as the research object.Through the analysis of the current law,it is found that the homestead ownership is facing a serious realistic dilemma,which is mainly manifested as the subject virtual position and incomplete content.Under the background of the homestead "three-power separation" reform,it should be made clear that the collective economic organization is the main body of homestead ownership.The fourth part mainly takes the homestead qualification right under the separation of three rights as the research object.Firstly,this paper analyzes the connotation of the right of homestead qualification right,because homestead qualification right has two attributes of physical security and monetary security,corresponding to the connotation of the right is reflected in the right of homestead use income right and the right of homestead residence security.At the same time,from the perspective of safeguarding their own rights and interests,after the establishment of secondary right of use,the right person also has the right to supervise the use of homestead.Then,in order to perfect the homestead qualification right system,the system is designed from the aspects of subject qualification,right confirmation and registration,voluntary withdrawal and paid use.The fifth part mainly takes the homestead use right under "three rights separation" as the research object.Firstly,this paper analyzes the connotation of the right of the secondary right of use,and points out that it should be a pure property right,belonging to the usufructuary right category,which can realize the use of real right and creditor’s right.Then,in order to perfect the secondary use right system,the system is designed from the aspects of subject qualification,term of use,right confirmation and registration,and risk prevention.