The Studying Of The Legal Nature Of Homestead Qualifying Right

It is inseparable to study the legal nature of homestead qualifying right from the realistic background in which the right is generated.Fewer and fewer people in the village,vacant homesteads,and the population migration from rural to urban are the practical backgrounds of homestead qualifying right;vacant homestead ownership,the imperfection of the circulation system of right to the use of curtilage,and the lack of exit mechanisms are the institutional backgrounds for generating this right.As the country puts forward the exploration of the practice of homestead pilot reform,homestead qualifying right is formally proposed in the "Opinions of the CPC Central Committee and the State Council on the Implementation of the Rural Revitalization Strategy".Now the debate over the legal nature of homestead qualifying right is fierce.The article adopts a research method combining empirical research and normative research.In this article,I take Yiwu City of Zhejiang Province,Deqing County of Zhejiang Province and Jingde County of Anhui Province as the key cases to analyze the status quo of the reform of homestead qualifying right.By analyzing the theory of the legal nature of homestead qualifying right,the article determines the legal nature of homestead qualifying right and proposes solutions to practical issues.The paper is divided into four parts:The first part: analyzing the current status of the practice of homestead qualifying right and drawing conclusions.In practice,the role of the homestead qualifying right is reflected in meeting farmers’ living needs,Paid Use System of Homestead and Paid withdrawal system of Homestead.The second part: analyzing the practical problems of homestead qualifying right and the causes of the problems.By comparing the practice of homestead qualifying right with the reform goal of the national housing site "separation of three powers",the current homestead qualifying right has failed to achieve the protection of the rights and interests of villagers as collective members.Secondly,there is no substantive innovation in the content of the right of homestead qualifying right.At present,the root cause of the problem of homestead qualifying right in practice is that the reformers have insufficient understanding of the legal nature of homestead qualifying right.Therefore,it is necessary to clarify the legal nature of homestead qualifying right to solve practical problems.The third part: Discussing the legal nature of the homestead qualifying right,based on whether it is necessary to create the homestead qualifying right and how it should be created.Due to the problems in the practice of homestead qualifying right,the reform of homestead system has not achieved the goal of reform.Some scholars hold a negative attitude to homestead qualifying right and advocate that homestead qualifying right is not necessary to be substantive.The key question for the creation of the homestead qualifying right is what kind of right should be created.In other words,what should be the legal nature of the homestead qualifying right? The academic circles mainly have several views on the legal nature of homestead qualifying right,such as usufructuary right,secondary usufructuary right,membership right,residual right,and compound right.The theory of surplus right and the theory of compound right only analyze the content and characteristics of homestead qualifying right,without clearly proving what the legal nature of homestead eligibility is.The theory of usufructuary right violates legal principle of property right and One-Object-One-Right doctrine.The theory of sub usufructuary right cannot explain the theoretical problem that other property rights can only be set by ownership.What’s more,it is not in line with Chinese practice.The article advocates the introduction of a membership system to analyze the legal nature of homestead qualifying right.It is feasible to regard homestead qualifying right as a member right,connecting the ownership of collective land with right to the use of curtilage and taking into account collective interests and the interests of collective members.The fourth part: Discussing the legal nature of the homestead qualifying right in view of the right composition of the homestead qualifying right.The reform of "separation of the three powers" aims to seek a balance between the right to qualify and right to the use of curtilage.The nature of the homestead qualifying right,which is the membership right,determines the right subject,right attribute,right content,and right relief method of the qualification right.At last,the article puts forward suggestions on enriching specific rights of homestead qualifying right and increasing the resolution of disputes on homestead qualifying right.