Study On The Inheritance Of The Right To The Use Of Homestead

Homestead system is an important land system,which is related to the living and living foundation of farmers,and plays an important role in maintaining the stable order of rural areas.But there is no specific provision in the law to inherit the land use right has been,the inheritance of local rules and regulations for the right to use house sites regulations also each are not identical,academic inheritance for the right to use house sites has not formed tong said that in the judicial practice to inherit the land use right treatment is also different,even contradictory situation.In order to realize "the same case with the same judgment" of the case of homestead use right inheritance,this paper discusses the inheritance of homestead use right for academic research.This paper mainly adopts the method of interpretation and case analysis to analyze the related problems of the inheritance of the right to the use of homestead.In addition to the introduction and conclusion,this paper consists of three chapters.The introduction explains the problems existing in the inheritance,which connect with the right to the use of homestead in china.The lack of clear provisions in the law,local regulations are also different,and the academic community has three different views on the inheritance of the right to the use of homestead,the judicial practice of the inheritance of the right to the use of homestead is more complex,and there are even contradictions and conflicts between the judgments of various courts.The first chapter mainly discusses the inheritability of the right to use homestead.This paper discusses the inheritability of the right to use homestead from both positive and negative aspects: the positive argument analyzes the necessity of the right to use homestead from the perspective of the necessity of inheritability,and explains the usufructuary property,guarantee function and operation requirements of the withdrawal mechanism of homestead.The negative argument starts from the disadvantages caused by the non-inheritance of the right to use homestead,and is demonstrated from the three aspects of "equality" principle,"green" principle and public order and good customs.The second chapter analyzes the scope of successors to the right to use homestead.First of all,the identity of the heirs to the right to use the homestead in the case was sorted out.Most of the courts believed that the heirs must be members of the "household" or the collective economic organization,and a few cases recognized that non-members of the collective economic organization could also inherit.However,the limited scope of inheritances is too small,which affects the play of the economic value of homestead,and there is also a deviation in the understanding of the principle of "one family,one house",the main legal basis.Therefore,we should expand the scope of successors of homestead use right,so that non-members of the collective economic organizations can also inherit the homestead use right,better play the economic value of homestead,and promote the smooth operation of homestead exit mechanism.Chapter three discusses the limitation of the inheritance of the right to use house land.At present,there are two restrictions on the inheritance of homestead use right: the homestead use right must be inherited together with the above-ground house,and after the inheritance,the restrictions on the above-ground house repair.This paper holds that the right to use homestead cannot be inherited alone,and the academic and judicial circles also believe that the right to use homestead simply cannot be inherited.However,the scope of the heritage is not convincing enough,and there are problems in the argument of "the premises as a whole".The reason that the homestead right of use cannot be inherited separately is the residence guarantee function of homestead right of use.As for the problem of restricting house repair after inheritance,this paper first explains the regulations and precedents of restricting house repair,analyzes the reasons of restricting house repair,and finally analyzes the illegality of restricting house repair.The conclusion shows that the inheritance system of the right to the use of homestead is of great significance to alleviate the contradiction of homestead system.In the future,there will be further reform and development in the inheritance of the right to the use of homestead in China.It should be noted that for the better operation of the homestead system,the inheritance of the right to the use of homestead needs to cooperate with the withdrawal mechanism of homestead in order to play a better role.