| For a long time,China’s homestead system has been designed in accordance with the socialist public ownership system.At the beginning of the homestead system,in order to protect the right of peasants to live,the homestead system has always been based on the principles of social security and welfare,and has experienced the transition from one ownership to two rights separation.In the stage of separation of the two rights,the collective has the ownership,and the farmers have the right to use the homestead free of charge.Such a system design plays a positive role in protecting the right to live of farmers.But free means restriction.There are many restrictions on the use right of homestead,such as prohibition of transfer to non collective personnel,non mortgage and so on.With the acceleration of urbanization and the progress of society,the homestead system with the separation of two rights is no longer suitable for the development and progress of society.The second generation of farmers,based on the popularization of higher education,are more and more admitted to universities.In this context,the rapid transfer of rural population to cities and towns,rural residential land idle phenomenon,the number of hollow villages also increased year by year.At this time,farmers’ demand for transfer and mortgage of the right to use the homestead is strong,while with the increase of social mobility,the demand for transaction of rural housing is strong.Under the circumstances that the transfer of the right to use the homestead is prohibited by law,there are many underground trading markets.The emergence of the underground market has a negative impact on the development of the homestead system,and makes the sense of social integrity absent.When the transferred homestead has a higher value appreciation,the seller and the buyer often have disputes based on the homestead.The court has different solutions to the case.Some courts ruled that the contract was invalid according to the stipulation of forbidding the transfer of homestead.Because of the fault of both parties,the transferee could only obtain part of the price of the house appreciation.Other courts have ruled that contracts are valid on the basis of the principle of good faith.Such different judgments challenge the stability and authority of law.The frequent occurrence of such cases and the waste of homestead resources have attracted the attention of the Party Central Committee.The Central Committee of the CPC carried out pilot reform work several years ago,and carried out pilot reforms in 33 counties throughout the country.In 2018,the No.1 central document proposed the three rights division reform of homestead ownership,qualification rights and farmers’ property rights and usufruct.At the same time,the reform around the country has also been fruitful,exploring the paid withdrawal mechanism of the right to use homestead and the direct transfer mode with restrictions on the right to use homestead.Reform leads legislation.In 2019,the Standing Committee of the National People’s Congress passed the amendment to the land administration law of the People’s Republic of China.In the amendment,a relatively successful scheme of reform,the voluntary paid withdrawal mechanism,is adopted,that is,the villagers who enter the city and settle down can voluntarily pay to withdraw from the homestead.This system is not only the legal feedback to the real life,but also a guarantee to the economic interests of farmers.Based on the above problems,this paper will explore and improve the voluntary paid withdrawal mechanism,open the homestead use right trading market and other measures.However,in the current reform process,there are still many problems and challenges.For example,the problem of over occupation of homestead left over from history;for example,the problem of defining the concept of entering the city and settling down under the system of voluntarily withdrawing the homestead with compensation;for example,the problem of land loss and loss of collective resources faced by farmers in the reality of the transfer of the right to use homestead.Specifically speaking,this paper will introduce from the following parts:first,the introduction part:through a case of rural housing transaction,it introduces the problems in the transfer of the right to the use of residential land,and analyzes the existing disputes in the transfer of the right to the use of residential land through the different judgment results of other cases;second,the development process of China’s residential land system and the basic connotation of the Three Rights Separation reform;third,the beneficial exploration and the facing problems of the reform pilot area for the transfer of the right to use the Homestead:through this part,we can obtain the relevant successful experience and find out the internal problems from the pilot Fourth,introduce the legislative status of the right to use the homestead in China;fifth,based on the background of the reform of the separation of three rights,draw the measures and suggestions to improve the transfer of the right to use the homestead.The innovation of this paper lies in:on the transfer subject,we should gradually open the transfer market of the right to use the homestead;under the current system,we should improve the voluntary and paid withdrawal mechanism of the homestead;on the mortgage of the right to use the homestead,we should remove the restrictions of the mortgagor,explore measures to prevent and resolve financial risks;on the inheritance of the homestead,we should give the successor equal inheritance rights.Through this study,in order to provide a better idea for the improvement of the circulation system of homestead use right in China. |
