| The issue of the circulation of the right to use the homestead has long been widely concerned by the legal circles,the economic circle and the public.The issue of whether the right to use the homestead can be circulated has basically reached a consensus in the academic circle,that is,the revitalization of the right to use homesteads should be allowed to promote rural revitalization.However,the scope of circulation of the right to use the homestead allowed by the current laws and policies is extremely limited,which essentially limits the complete nature of the right to use the homestead.This kind of policy and norm that restricts the scope of circulation of the right to use homesteads gradually reflects its inherent drawbacks: restricting the scope of circulation of homestead use rights to industries such as rural tourism,farmhouses and rural health care that use the right to use homesteads with limited use without automatically transferring the ownership of houses on homesteads cannot naturally realize the property value of houses on homesteads,and restrictions on the realization of house values on homesteads are not conducive to the realization and growth of the wealth of rural residents.On the other hand,the dual system of urban and rural areas is an important social problem that needs to be solved urgently,and the dual system is manifested as "housing difficulty" in terms of social problems,which is also the social reason for the widespread existence of the invisible market for farm house transactions in practice.To crack the dual system of urban and rural areas and solve the problem of housing difficulties for urban residents,it is required to clarify the scope of circulation of the right to use homesteads from the legal and policy levels,recognize the effectiveness of the circulation of farmhouses on homesteads to urban residents,and establish a legal system for the limited circulation of homestead use rights.This paper comprehensively adopts the literature analysis method,case analysis method and normative analysis method,sorts out the laws,policies and departmental rules on collectively owned land after the founding of the People’s Republic of China,studies the changes and omissions of the latest land laws,regulations and policies,and comprehensively analyzes the judicial views of the courts in various localities in judicial adjudication that the contract for the sale and purchase of farmhouses on homestead land is valid and invalid,and on this basis,the practical problems reflected in the current judicial adjudication process of civil cases of the circulation of homestead use rights are derived.Based on the practical analysis of legal norms and judicial adjudication cases,the actual lack of legal norms for the right to use homestead land is drawn,and the corresponding direction of the legal system for the circulation of homestead use rights is analyzed.It further puts forward the idea of constructing a legal system for the circulation of the right to use homestead land under the perspective of the separation of the three rights,that is,what should be constructed at present is a limited circulation system for the right to use homestead land,and the owner of the right to use the homestead is allowed to transfer the right to use the homestead to a third party when the conditions stipulated by laws and regulations are met.After this basic principle has been laid,what is needed is to set the above-mentioned "conditions stipulated by laws and regulations",that is,the restrictive conditions for the limited circulation of the right to use the homestead.In view of the fact that the fundamental purpose of the construction of the homestead use right circulation system is to realize the complete property rights of rural residents and solve the dual structure of urban and rural areas,the restrictions on circulation must be considered on this basis.This paper designs and considers the restriction system on the circulation of the right to use homestead from six aspects,first,restricting the main qualifications of the outgoing party and the transferee;second,restricting the outflow object,prohibiting the bare circulation of the homestead land,and prohibiting the circulation of the homestead formed by occupying agricultural land;third,clarifying the scope of the power of the circulation of the right to use the homestead;fourth,giving the members of the collective economic organization "priority";fifth,establishing a sound registration mechanism;and sixth,improving the obligations of the relevant parties in the circulation. |
