The Natureand Legalexpression Of Homestead Qualification Right Under The "Separation Ofthree Rights"

With the development of economy and society,“separation of two rights” in homestead facing institutional dilemma,so the party and the state put forward the reform of “separation of three rights”.The homestead qualification right is an innovative expression proposed in the context of “separation of three rights”,and there are many disputes on its nature and legal expression,which need to be further studied.This paper uses a variety of research methods such as literature analysis,policy text analysis and normative analysis to clarify the nature of homestead qualification right and explore its legal expression.Firstly,it points out the expression of the right of homestead qualification in policy,objectives and related practical exploration,and clarifies the proposal of the right of homestead qualification,focusing on protecting the basic living interests of farmers and realizing the property value of homestead and its houses.Secondly,the main viewpoints on the nature of homestead qualification right are evaluated.Although “the theory of membership right” is reasonable,it does not conform to the inherent implication of the policy of “separation of three rights”,and its supporting rationale also has logical contradictions,which should not be adopted.The theory of usufructuary right,which agrees with the policy implication of the“separation of three rights” reform,it is reasonable,but its arguments are not sufficient and need to be strengthened.Thirdly,clarify the nature of homestead qualification right under the “separation of three rights”.The theory of membership right,which means that the collective members apply for distribution to obtain the qualification of collectively owned homestead,so its “homestead qualification right” actually means the homestead qualification right I.The theory of usufructuary right,which means that to the state of rights left after the fact that the homestead has been applied for and transferred,so its“homestead qualification right” actually means the homestead qualification right II.The homestead qualification right under the “separation of three rights”,which actually means the homestead qualification right II,which is essentially usufructuary right.There are two reasons: one is that it has legal legitimacy,conforms to the basic logic of real right change,conforms to the basic theory of usufructuary right construction,and does not violate the principle of legal real right and one property and one right;the other is that it has practical feasibility,fits the policy implication of“separation of three rights” reform,has practical basis,and is also feasible in legislation technology.Finally,based on the usufructuary right nature of homestead qualification right,explore its legal expression.The legal expression of homestead qualification right can be carried out from the subject,name,content,registration and relief of rights change.The subject of homestead qualification right is individual members of the collective.The right to use homestead can be used in the name,including income and other functions in the content,and the registration of property rights can be registered.The right to transfer to a third person can be marked in the notes to the certificate of rights.If infringed,administrative relief is given priority,and judicial relief is the bottom line.