The Research On Practice And Perfection Of Chinese "Separation Of Three Rights" Of Homestead

The "three rights separation" of rural homestead is another important innovation of China’s rural land property right system after the "three rights separation" of farmland.At present,the practice of "three rights separation" on homestead is becoming more and more mature.How to further implement the results of the reform into the system design needs to be summarized and improved from both theoretical and practical aspects.In theory,the right nature of the ownership,qualification right and use right should be identified as "socialist public ownership","surplus right" and "usufructuary right".On this basis,it is clear that the main body of ownership is the peasant collective,which enjoys the complete rights including possession,use,profit and disposal,the main body of the qualification right is the collective members who,after the transfer of the right to use,enjoy the benefits of the homestead;the main body of the use right is the third party,which needs to be included into the social capital,and has the rights to possess,use,profit and dispose of the use right.In practice,the pilot areas have made active and effective explorations in the implementation of collective ownership,the protection of peasant households’ qualification rights and the allowing flexibility of use right,and have summed up a set of replicable and popularized experience in the separation of three rights on homestead sites.However,there are still some problems in the spontaneous practice,such as insufficient laws and regulations,inadequate coordination of supporting measures,and excessive government power.Consequently,improve the system of "three rights separation",first of all,to speed up the change of laws and regulations.The "three rights separation" of rural homestead in the legislative expression should be made in "collective ownership,farmer use rights,others’ management rights",the land management law and the civil code of the real right made up about the terms of the land are subject to further improve and modify;Secondly,we should improve the supporting measures of homestead reform,promote the connection of urban and rural social security systems,and establish market rules for homestead transfer.Finally,it improves the way of right relief,establishes the administrative dispute relief mechanism,and clarifies the people’s court’s hearing of the dispute of farmers’ qualification right and gives play to the arbitration procedure to solve the dispute of farmers’ qualification right.