Research On The Legal System Of Mortgage Of Homestead Use Right

In 2021,the opinions of the CPC Central Committee and the State Council on comprehensively promoting rural revitalization and speeding up agricultural and rural modernization pointed out that it is necessary to strengthen the management of homestead,steadily and cautiously promote the pilot reform of rural homestead system,and explore the effective form of the separation of homestead ownership,qualification right and use right.From the current legislation,the relevant legislation is not perfect.As to whether the right to use the homestead can be mortgaged,Article 399 of the Civil Code stipulates that the right to use the homestead cannot be mortgaged,unless otherwise stipulated by law.That is to say,there is no clear statement on whether it can be mortgaged.The land management law only stipulates that the application for the right to use the homestead shall not be approved after the house is sold,leased or donated.If the obligee gives up the re application,whether the right to use the homestead can be mortgaged is not clearly stipulated in the legislation.At the same time,the central government has been committed to promoting the mortgage of homestead use right since 2013.Until 2021,the reform of land system is not over.The unclear attitude in law and the strong support from the policy level make the mortgage of the right to use the homestead in an embarrassing situation.Through the analysis of the general theory of the right to use the homestead,it is found that the right to use the homestead and the farmers’ housing property rights have unity in the legal order.Whether from the physical level or from the legal level,the two are closely related.On the physical level,the right to use the homestead and the houses on it are inseparable.At the legal level,China’s civil code clearly stipulates that real estate mortgage needs to adhere to the principle of "real estate integration".In 2018,the opinions of the CPC Central Committee and the State Council on the implementation of Rural Revitalization Strategy put forward that rural housing mortgage loan should be included in the reform of "Three Rights Separation",and continue to promote the mortgage of homestead use right.In practice,the mortgage of homestead use right and the mortgage of farmers’ housing property right have the same goal and pursuit at the level of fully realizing the income power and function of homestead use right.Considering the mortgage of homestead use right and the mortgage of farmers’ housing property right as a whole is of great significance for the practical exploration of homestead use right.By combing the relevant policy system of homestead use right mortgage,we can see that some policies conflict with the law,the policy does not connect with the law,the relevant provisions are not perfect and so on,which greatly limits the current work of homestead use right mortgage.It is also a difficult problem in practice to confirm and issue certificates.The confirmation of land use right has been put on the agenda before mortgage,but it is difficult to solve the problem in practice.It is not only the complexity and difficulty of power confirmation,but also the management confusion behind it.Other difficulties in carrying out this work are the lack of supporting systems and so on.What kind of subject can be the mortgagor and mortgagee,what kind of rights can be mortgaged,how to make the rights and interests of the parties get the maximum protection,how to smoothly realize the transfer of rights,how to exit orderly,how to reasonably evaluate and price,and so on.Relevant policies and legislation have not been reflected,mostly in principle,which makes the solution of practical problems lack of operability and thoroughness.By summing up the pilot experience of three typical areas,it is not difficult to find that the practical experience can be used for reference to solve various problems in the policy system.It is of great significance to clarify the conditions of mortgagors,increase the support for the government and financial institutions,mortgage the real estate as a whole,solve the problem of insufficient supporting facilities,and attach importance to the work of power confirmation and certification.Based on this,the author proposes to improve the relevant legislative system,establish the access system,improve the operation mechanism,improve the exit mechanism and so on.Specifically,we should realize the income right of the right to use the homestead,allow the right to use the homestead to be mortgaged under certain conditions,establish the paid use mechanism of the right to use the homestead,establish the lease use system of the homestead,and adhere to the punishment principle of "housing and land integration",so as to solve the problem of the imperfect legal system of the mortgage of the right to use the homestead in our country,and provide reference for the mortgage of the right to use the homestead The legal basis is to establish a legal settlement mechanism for the illegal acquisition of the right to use the homestead,and to set up the right to lease the homestead for the fact that the right to use the homestead under special circumstances.The principle of "integration of housing and land" is implemented in the whole process of the mortgage of the right to use the homestead,so as to avoid the ownership disputes and the difficulties in the realization of the mortgage of the right to use the homestead.Set up the access threshold for the right to the use of homestead,set certain conditions for the relevant subjects to participate in the mortgage of the right to the use of homestead,and check the entry of the right to the use of homestead into the mortgage circulation market from the source.At the same time,we should improve the relevant risk prevention system,right confirmation registration system and social security system,establish special rural land financial institutions and mortgage transfer platform,etc.to provide comprehensive support and guarantee for the mortgage transfer of homestead use right.By solving the problem of the convergence of law and policy,clarifying the qualification of the subject of mortgage relationship,improving the supporting mechanism,preventing financial risk and farmers’ land loss risk,and on the premise of maintaining rural social stability,the function of farmers’ property rights income can be realized to the maximum extent.